Provisions of Interim Constitution Still in Operation: Report by Department of Justice
Constitutional Review Committee
20 May 2005
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Meeting report
CONSTITUTIONAL REVIEW JOINT COMMITTEE
20 May 2005
PROVISIONS OF INTERIM CONSTITUTION STILL IN OPERATION: REPORT BY DEPARTMENT OF JUSTICE
Chairperson:
Documents handed out:
Legal Services Office: Provisions of the Interim Constitution still in operation
Department of Justice and Constitutional Development letter to Committee Chairperson (see Appendix)
SUMMARY
The Department of Justice and Constitutional Development gave feedback on Parliament's Legal Services Office document that had identified provisions from the Interim Constitution that are still in operation. The Parliament's Legal Services Office had advised whether they needed to be repealed or repealed and included in other appropriate legislation. The Department explained that as these sections affected the functions of different state departments, the Department would require more time to consult with them and prepare a final report. The Committee reached consensus that the final report should be given by the Department of Justice and Constitutional Development on 10 June 2005.
MINUTES
Mr Jeffrey (ANC) observed that the Members of the National Council of Provinces were absent due to a plenary meeting that they were attending. It was suggested that future meetings be fixed to accommodate the schedule of all the stakeholders. The Chairperson said that it was difficult to schedule meetings to accommodate all stakeholders but efforts would be made in that regard.
Department briefing
Mr J Labuschagne (Legal drafter in Department of Justice and Constitutional Development) gave input on provisions from the Interim Constitution, Act 200 of 1993, that are still in operation. His Department had begun scrutiny of the relevant sections identified by Parliament's Legal Office as needing to be repealed or repealed and included in other appropriate legislation. He explained that these sections affected the functions of different state departments and the Department would require more time to consult with them and prepare a final report.
Besides the sections identified by Parliament's Legal Office, the Department had noted that section 108 of the Interim Constitution continued in force until the Act of Parliament envisaged in section 179 of the Constitution took effect.
The Department of Justice was not in a position to express final views on the desirability of which course of action to pursue with regard to the identified sections as these sections also affected the functions of other State Departments.
He requested an extension to enable the Department of Justice to conduct research on the matter as well as collate the input of the concerned departments. Once this was completed, the Department would produce a final report which would be submitted to the Committee.
Discussion
Mr P Smith (IFP) asked what happen if there was a conflict between two Acts, which one would prevail over the other? Initially, it had been suggested that the sections under discussion should repealed which was contrary to the current position that they could be re-enacted. Was there any obligation to do so?
Mr Labuschagne replied that it would be appropriate to repeal all the sections in the Interim Constitution, as it was not ideal for similar provisions to operate concurrently.
Mr J Jeffrey agreed that other stakeholders should be consulted. However it seemed to have taken plenty of time and it was important for the Justice Department not to commit itself to a certain timeframe that it could not adhere to. It should give an indication as to when the final report would be ready. Most, if not all, of the sections repealed had already been dealt with in legislation in some way and very few of those sections needed to be re-enacted.
The Chairperson stated that time was of the essence but the Committee recognised the personnel constraints that the Department of Justice faced.
Mr Labuschagne said that letters would be sent out early the following week to the various departments. A deadline would be set for those departments to submit their reports. There were five sections in the Constitution that dealt with issues - such as the functions of the Defence Force - which might take time to consider. A deadline of two or three weeks could be set.
Mr Jeffrey said that it would be important if the Department of Justice and Constitutional Affairs could facilitate the work of the Defence Council by indicating the sections that had to be dealt with.
Mr S Montsitsi asked if the provisions in the Interim Constitution were still applicable.
Mr Labuschagne responded that there were certain provisions in the Constitution that kept those sections in the Interim Constitution alive. Those sections would remain in force unless they were found to be inconsistent with the Constitution or repealed by an Act of Parliament.
The Chairperson stated that the Department should consult with the necessary departments and report back to the Committee at the earliest possible time. A letter had been written to the heads of Joint Rules Committee, which explained that that the Committee had decided on a process. He promised that by their next meeting, the final reports would be available.
Mr Jeffrey said that considering that Parliament would rise on 24 June, it would be reasonable to give the Justice Department until 17 June to allow the Committee a week for deliberations on the report before Parliament rose.
The Committee reached consensus that the final report should be given by the Department of Justice and Constitutional Development on 10 June 2005.
The meeting was adjourned.
Appendix:
From: Department: Justice And Constitutional Development
To: Chairperson of Constitutional Review Joint Committee
Date: 20 May 2005
Dear Dr Schoeman
PROVISIONS OF THE INTERIM CONSTITUTION THAT ARE STILL IN OPERATION
The above matter and your letter of 21 April 2005 that was forwarded to the Minister for Justice and Constitutional Development, refer. We have started to scrutinise the sections of the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993) (the Interim Constitution), that are still in operation and which, as pointed out by Adv F Jenkins in the legal opinion that he submitted to the Constitutional Review Committee, must either be repealed or repealed and re-enacted in appropriate legislation. For the Committee's information it could be mentioned that we have, apart from the sections of the Interim Constitution that are still in operation, as identified by Adv Jenkins in his legal opinion, also noted that section 108 of the Interim Constitution continues in force until the Act of Parliament envisaged in section 179 of the Constitution takes effect.
We agree with Adv Jenkins that the sections of the Interim Constitution that are still in operation may be amended or repealed by ordinary legislation passed in accordance with section 75 of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996).
It appears to us that the identified sections of the Interim Constitution may be repealed and that it might be necessary to re-enact some of those provisions in appropriate legislation. However, as those sections have a bearing on the line functions of various State Departments, we are not in a position to express any final views on the desirability of either repealing those sections or repealing and re-enacting those sections in appropriate legislation without having consulted the relevant State Departments.
In the light of the above, we would like to request the Committee to give us an opportunity to research the matter thoroughly and to approach the relevant State Departments for comments on the desirability of either repealing those sections of the Interim Constitution that have a bearing on their line functions or repealing and re-enacting those sections in appropriate legislation. Should the Committee give us such an opportunity, a final report on the matter in question will be submitted to the Committee once the research has been conducted and the consultation process has been concluded.
With kind regards
ACTING DIRECTOR-GENERAL: JUSTICE AND CONSTITUTIONAL DEVELOPMENT
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