Citation of Constitutional Law Bills: briefing and adoption

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Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE

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 1st Amendment Act of 1997" and ended with "The Constitution 11th 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.

The Chair person reiterated the earlier answer given by Mr Labuschagne that presently all constitutional amendments would be numbered consecutively to reflect the number of times the Constitution had undergone amendment.

Mr Labuschagne asked if what Mr Moseki meant was that all the Acts which referred to the Constitution should be specifically amended.

Mr Moseki responded that the clause seemed to be too general and did not specifically refer to the Acts which amended the Constitution; it also seemed to refer to all the Acts which had been passed by Parliament. Would it not be necessary to say somewhere in the Bill that all Acts that have made reference to the Constitution (regardless of the number) automatically reflect the amendment of the citation of the Constitution?

Mr Labuschagne responded that in accordance with Clause 2 any reference to the Constitution would be construed without the number (Act 108 of 1996). It was pertinent to include such a general clause, or else all the affected Acts would have to be amended. Also, it would involve getting the approval of the various state departments, which were affected by those Acts. Therefore, it had become general practice that whenever an expression which appeared in various other Acts was substituted, it should be done through the inclusion of such general clauses. It would be possible to amend all the Acts that made reference to the Constitution but it would be done through the means of a Schedule and with the approval of all the various state departments involved.

The Chairperson said that the phrase "in any law’ in Clause 2 referred to all the Acts mentioned by Mr Moseki. He asked the Committee about the necessity of convening another meeting on the Bill or whether they should approve the Bill immediately.

Mr A Manyosi (ANC) proposed that the Bill be passed then because it posed no political interference with any issue. The matter being discussed was a technical issue which facilitated the working of the law.

Mr J Le Roux (DA) thanked Mr Labuschagne for the concise presentation. The Bill was good law which had his support and should be adopted as soon as possible.

Adoption of Bill
The Chairperson said that it was clear that the Bill dealt with a technicality and that it was desirable to have this legislation. He asked for a member to move a motion of desirability.

Mr Moseki moved the motion and it was supported by Mr Z Ntuli (ANC).

The Committee read through all the clauses and there was consensus on the provisions. Mr Le Roux, Mr Manyosi and Ms Nyanda moved a motion to say that the report regarding the amendment had been read out to the Committee and it was adopted unanimously.

The Chairperson said that the Committee might not debate the Bill in the House but merely recommend its approval.

The meeting was adjourned.

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