Citation of Constitutional Law Bills: briefing and adoption

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
JUNE 1 2005
CITATION OF CONSTITUTIONAL LAW BILLS: BRIEFING AND ADOPTION

Chairperson: Mr K Mokoena

Documents handed out:
Citation of Constitutional Laws Bill [B5-2005]

SUMMARY
The Committee unanimously adopted the Bill without amendment after being briefed on it.

MINUTES
Mr J Labuschagne, Department of Justice drafter, addressed the Committee on the amendments to the Citation of Constitutional Laws Bill. The Bill was not controversial and was merely of a technical nature. Each Act that was passed by Parliament had an Act number allocated to it. An Act number had been allocated to the Constitution, that is, Number 108 of 1996. However, the difference between ordinary Acts and the Constitution was that the Constitution was not passed by an Act of Parliament but was adopted by the Constitutional Assembly. Therefore the view had been expressed that the Constitution should be treated differently from other Acts of Parliament by not being allocated an Act number. This view was held by the Chief Justice, other members of the judiciary and the Portfolio Committee on Justice and Constitutional Development. Since there had been eleven amendment Acts to the Constitution to date, those amendment Acts should be numbered consecutively. This was the practice in other countries such as the United States and India. This Bill gave effect to this decision on the numbering of the Constitution and the short titles and numbering of all constitutional amendment Acts.

Clause 1 of the Bill provided that as from the commencement of this Bill, no Act number would be associated with the Constitution. It would now be referred to as "Constitution of the Republic of South Africa, 1996" without "Act Number 108 of 1996".

Clause 1(2) provides that the reference to the Constitution in other Acts should also appear without the Act number. It was decided that such Acts would not be amended because it affected more than a 100 Acts. Therefore any reference to the Constitution in those Acts would be deemed as done without the Act number.

Clause 3 of the Bill provided that as from the commencement of this Act, no Act number would be allocated to any of the Constitution Amendment Acts. The Schedule showed the current Act numbers that would no longer exist.

Clause 3(2) provided that all the Constitutional Amendment Acts must be numbered consecutively which had been effected in the Schedule. It now opened with "The Constitution 1^st Amendment Act of 1997" and ended with "The Constitution 11^th amendment of 2003". Therefore the next Amendment Act would be called "The Constitution 12th Amendment Act."

The Bill had been passed by the National Assembly on 17 March, 2005 and the Portfolio Committee had effected two changes to the bill. Firstly in the third paragraph of the Preamble, the words "For example" had been deleted. The second amendment was to the heading of Clause 1, which had been changed.

In summary, the Bill sought to remove the Act numbers in the Constitution, to provide that in future no Act numbers would be allocated or associated with Constitutional Amendments Acts passed Parliament and that all future Amendment Acts would be numbered consecutively.

Discussion
The Chair asked what the previous heading of Clause 1 had been before it was changed by the Portfolio Committee.

Mr Labuschagne responded that the previous heading was "Change of reference to the Constitution of the Republic of South Africa 1996, Act number 108 of 1996". The Portfolio Committee felt that the previous heading did not really express the intention of the clause and therefore changed it to reflect that no Act number should be associated with the Constitution. The change was a matter of preference for the Portfolio Committee and was merely technical. The words "For example" were also deleted by the Portfolio Committee.

Mr A Manyosi (ANC) asked if it was the judiciary that had initiated this change.

Mr Labuschagne replied that to some extent the change had been initiated by the judiciary. However Professor Van Wyk of the University of South Africa had first written an article that had expressed this view that the Constitution was incorrectly allocated as an Act of Parliament. The matter had also been raised by the Portfolio Committee. It would be difficult to answer who initially initiated the change.

The Chair asked for clarification on the numbering of all future constitutional amendments.

Mr Labuschagne replied that all future constitutional amendments would be numbered consecutively and he referred the Chair to the Schedule which provided for the change.

Mr A Moseki (ANC) asked for clarity on the clause that stipulated that "no Act number should be associated with the Constitution of the Republic of South Africa 1996, Act 108 of 1996", as it appeared too general and did not specify the Acts that were actually affected. The phrase seemed to refer to all Acts and not just the ones that were intended to amend the Constitution.

[PMG note: The rest of these minutes available on 7 June 2005]