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CONSTITUTIONAL REVIEW JOINT COMMITTEE
26 August 2005
LEGAL OPINION ON PUBLIC SUBMISSIONS PROPOSING CHANGES TO CONSTITUTION
Chairperson: Dr E Schoeman (ANC)
Documents handed out:
Index of submissions received from the public
Legal opinion of the Parliamentary Legal Services (email firstname.lastname@example.org for this document)
Parliament’s legal advisors presented their legal opinion on numerous submissions from various interest groups who had responded to the Committee's call for submissions on proposed changes to the Constitution. The Committee noted that most submissions would require a change in government policy. The submission by the Royal Bafokeng Tribe wanted more than a consultative role in the allocation of communal land rights. It requested further constitutional protection to ensure Parliament did not pass laws contrary to traditional authorities. The Legal Advisors undertook to investigate the issue of communal land rights within the framework of the Traditional Leadership and Framework Governance Act.
The Committee might summon the authors of some submissions to make oral representations such as the Human Rights Commission that had requested an oral submission on its need for proper resourcing, allowing it to be a watchdog over the government.
The Committee went through the submissions submitted by the public and listened to the legal opinion given on each by the Parliamentary Legal Services.
South African Property Rights Foundation submission
This submission concerned itself with the review of property clause as stipulated in Section 25 of the 1996 Constitution. The Property Rights Foundation submitted that the current constitutional provision on property failed to extend protection for the landless and unemployed citizens of South Africa. The Foundation was of the view that a revision of the property clause was essential to give more land to the unemployed and the poor. It warned about the grave danger posed by the escalation in property prices and the government's lack of ability to provide adequate housing.
Adv. F Jenkins (Parliamentary Legal Services) gave his legal opinion on the submission. The legal opinion indicated that current constitutional protection of property rights was inadequate to afford protection to the landless and unemployed. The opinion noted that the plethora of legislation passed by Parliament on "housing and property failed to provide a comprehensive scope to cover all sectors of our society". The majority of Members of the Committee agreed that the submissions on the review of the property clause had merit and needed serious attention by the Committee.
Royal Bafokeng Tribe submission
The submission dealt with the Royal Bafokeng claim over land rights located within the North West province. Adv. Jenkins gave a legal opinion on the submission which he said had merit.
The Chairperson invited comments and questions on the submission by the Royal Bafokeng.
Mr P Smith (IFP) expressed the view that there was merit in law for the submission made by the Royal Bofokeng Tribe. It warranted the Committee to develop an approach before any meeting with the Royal Bafokeng Tribe as the submission was based more on policy and it obliged the Committee to develop a policy approach. He proposed that a meeting should be held with the Royal Bafokeng Tribe to facilitate interaction on the issues raised in their submissions.
The Chairperson suggested that the Committee should leave the issue of policy approach for later discussion. However he agreed with Mr Smith that the submission raised a number of policy issues.
Ms Ndzanga (ANC) expressed the view that the submission by Royal Bafokeng was bizarre as it suggested that they did not live within the boundaries of South Africa. She strongly opposed the review of the Constitution on account of a small section of South African society. The Bafokeng Tribe wanted to hold the constitutional dispensation to ransom. She pointed out that some chiefs had connived with the former apartheid regime. Institutions such as the Royal Bafokeng had not allowed women to become chiefs and now wanted to lay claim to land rights. She contended that the question of gender equity should be addressed within the framework of communal land rights claims by the chiefs and in particular the Royal Bafokeng Tribe. However she did take cognisance of the fact that there were some chiefs who recognised women as equal role players. She said that the Royal Bafokeng Tribe should be summoned to explain their position.
The Chairperson cautioned Members to limit their comments to the submissions alone. The Legal Advisors should be given the opportunity to provide their perspective and recommendations after considering the submissions.
Mr Kgoshi Mokoena (ANC) noted the comments made by Ms Ndzanga about Traditional Leaders. However he said that the practices of custom and traditions differed from area to area. Disregard for women rights was not a common phenomenon in his area, namely Limpopo Province.
He referred to paragraph 13 of the legal opinion document and urged the Legal Advisors to refrain from using terms such "chiefs". He argued that the term "chief" was not in line with the Constitution and should be removed from the opinion. He agreed with the process outlined by the chairperson that the Committee should not deal with the demerits and the merits of the submissions at this stage.
The Chairperson pointed out that the Communal Land Rights Act provided for significant intervention by Traditional Leaders on the allocation of land. He alluded that the said was currently applicable in Kwa-Zulu-Natal and not all provinces. He invited the comments from the legal team.
Adv Jenkins explained that the Communal Land Rights Act did provide powers of intervention in allocation of land to Traditional Leaders. Therefore the Act did extend into the land that the Royal Bafokeng were claiming. There was controversy around the legitimacy of the Communal Land Rights Act as some Traditional Leaders were unhappy about this legislation. He reiterated that this Act did bestow some powers over Traditional Leaders in issues concerning allocation of communal land.
In essence the claim by the Royal Bafokeng was addressed by numerous pieces of legislation. However it appeared that the Royal Bafokeng wanted more than just consultative powers in regard to allocation of land. For instance the Traditional Leadership Framework Act operated within government framework for allocation of land. The Royal Bafokeng were not happy with only a consultative role in government
Adv. Jenkins said that the Communal Land Rights Act did not give veto powers to the traditional leaders over issues affecting their communities. The question of traditional leaders and land rights was a much more complex issue in South Africa. He advised that the issue could be referred for further discussion in the National Assembly as well as the National Council of Provinces. He apologised for using the term "chief" in paragraph 13 of the Legal Opinion. He undertook to look at the submission of Royal Bafokeng within the context of the Communal Land Rights Act.
The purpose was to investigate if the claims contained in their submission were covered in the Communal Land Rights Act. The Royal Bafokeng wanted protection more through the Constitution than in legislation.
Dr E Palmer (Head: Parliamentary Legal Services) commented that many of the public submissions did not necessarily require constitutional but legislative amendment. Therefore these submissions could result in legislative amendment rather than constitutional review.
Mr Smith pointed out that these submissions were raising objections specifically in legislation. He argued that any objection to legislation required a policy decision by government. The essence of the submission by the Royal Bafokeng Tribe was an attempt to protect the traditional institutions against the National Assembly passing laws affecting their communities. Their submissions were aimed at preventing government from passing legislation that was contrary to traditional institutions.
The Chairperson agreed that most submissions required policy decisions. The comments made by Members were helpful in outlining the approach to be followed by the Committee. The authority of traditional leaders to veto executive and legislative decisions was covered in paragraph 5 of the opinion. He referred to paragraph 20, where it stated that traditional leaders should have veto powers over certain Bills. He pointed out that the issue of veto powers related to policy and needed careful consideration by the Committee.
Ms S Camerer (DA) wanted to know if the Chairperson agreed with the notion that traditional leaders be granted veto rights to overrule legislation.
The Chairperson said that the Committee had to deal with submissions and recommendations contained in the Legal Opinion. Members had the opportunity to discuss the submissions and interrogate the Legal Advisors. The purpose was not to discuss the merits or rather demerits of the submissions themselves.
Ms Camerer admitted that she had misinterpreted the earlier comments made by the Chairperson.
Mr Kgoshi Mokoena wanted clarity on the submission on the abuse of the aged as contained in the Legal Opinion. He asked for the implications of guaranteeing the rights of aged within the constitutional framework.
Dr Palmer replied that the submission wanted a constitutional provision to protect the elderly from abuse. The submission wanted the right for the aged to reside in an old-age home to be incorporated in the Constitution. In essence the argument rested on the economic ability of government to support such a proposal.
Mr Smith submitted that the contents of the Legal Opinion seemed to suggest that there was an existing legal obligation placed upon grandchildren to support their parents. He pointed out that this position could run contrary to a corresponding obligation on parents to support their children.
Ms Camerer said that there was a common law obligation on parents to support their children. She argued that this legal obligation further extended to grandparents to support their grandchildren and not the other way around. She suggested that some people got infirm at 60 and others at 80 years of age. She expressed the view that there was no merit in the submission as most of the elderly people wanted to be with their families. Furthermore the Constitution itself protected adults from physical abuse.
Dr Palmer commented that the motivation of the submission was to tackle the problem of abuse of the elderly by family members. The submission sought to eradicate this by incorporating their right against abuse in the Constitution and to have a constitutional provision for the elderly to be institutionalised in old-age homes.
The Chairperson expressed his appreciation for the well-researched work done by the Legal Advisors on the submissions. The Committee was obliged to popularise the Constitution amongst young people of our country to get them involved. It seemed that many submission touched on policy issues.
Dr Palmer commented that the call for the return of the death penalty should be considered in the light of the current jurisprudence developed by the Constitutional Court. Such submissions carried substantial implications for the Constitution.
Ms Camerer raised her concern over the conditions under which children were held in prisons in view of Section 28 of the Constitution. The rights of children had been ignored for too long.
Mr Smith explained that the proposal in the submission would not give additional rights to children.
Dr Palmer responded that the proposal merely wanted the strengthening of these rights rather than to give additional rights.
Section 165 and 184 of the Constitution
The Chair commented that what was important in was the educational powers of the Human Rights Commission, he referred to the legal opinion which stated that they were of the view that the Commission was sufficiently empowered to educate the citizens of the country on human rights matters. The problem in this regard was not a lack of constitutional legislative authority but possible lack of resources to perform this function.
The Commission had indicated that they would like to address the Committee at some stage on the matters that were of issue to them.
Dr Palmer pointed out that a constitutional amendment as requested by the submission was not required as there was the South African Human Rights Commission Act which makes provision for the Commission to disseminate information. This was a matter of how this function was implemented which was a practical issue. The submission was almost a complaint that this was not happening. The second point was very fundamental and this was about having a watchdog over the judicial system and those are dramatic proposals for changes in the Constitution.
The Chair agreed that that was very fundamental.
Amendment of Chapter 9
Mr Jeffrey requested clarity on the impact of the proposal by Wits University on Chapter 9 institutions. The proposal was to amend the Constitution in order to accommodate ICASA as a Chapter 9 institution.
The response from the Legal Advisors was that there was no provision in the Constitution for telecommunications. ICASA as an institution regulating telecommunications and broadcasting was the only institution not mentioned in the Constitution under Chapter 9. Their view was that protection was afforded to ICASA in terms of its enabling legislation.
Mr Jeffrey wanted to know why the legal advisors believed that ordinary legislation provided sufficient protection for some bodies and yet others needed constitutional provision.
Dr Palmer replied that Section 192 of the Constitution required that national legislation be enacted to regulate the area of broadcasting and telecommunications. Therefore the Constitution itself had provided for the formation of ICASA.
Mr Jeffrey wanted to know if broadcasting included telecommunications given the current technological advances such as radio over the internet.
The Chair explained that this question reflected the total convergence of media in modern technology. Such convergence could result in certain causes becoming superfluous.
Mr Smith asked if there were any legal implications concerning the submission about ICASA. He thought that it would be useful to invite ICASA to explain the process of convergence within the realm of telecommunications.
Dr Palmer explained that telecommunications and broadcasting were specialised areas in law and it could be helpful to investigate the legal implications from constitutional perspective.
Ms Camerer remarked that it was interesting how technology was changing and yet the Constitution remained unchanged to meet the needs of people.
Mr Smith said that he found it bizarre that animal rights were equated with human rights according to the statement in the submission on animal rights. In essence the author of the submission requested a constitutional amendment to offer protection for animals. There was national legislation that protected animals against cruelty and abuse and such legislative protection was sufficient and there was no need for constitutional protection.
Ms Jordan from Legal Team explained that the legal opinion found that no protection existed in the Constitution for animals. However she intended to look at comparative constitutional analysis of other countries.
Mr Smith said that there were national laws which protected animals but the problem was law enforcement to deal with culprits responsible for animal abuse and cruelty.
Mr Jeffrey said that any protection of animal rights could be read into Section 24 of the Constitution which dealt with the protection of the environment and required the government to take reasonable measures to protect the environment. Animals were part of the environment.
Ms Jordan replied that the correct interpretation of Section 24 did not extend protection to animals.
Adv. Masutha (ANC) supported the contention that Section 24 of the Constitution did extend protection to animals. He accepted the separation of human rights from animal rights. But argued very strongly that the concept of "rights" is humanistic in nature. He submitted that the environment was a heritage which had sustained humanity. Therefore the animals forming part of the environment needed protection from the government.
Ms Njobe (ANC) wanted to know if there was any constitution elsewhere that incorporated animal rights. She also cautioned that it should be made clear whether protection should be afforded only domestic animals or to all animals.
Dr Palmer referred to the submission on co-operative government and the national intervention in provincial administration as provided for in Section 100 of the Constitution. The submission wanted more effective interventions by the national government in line with Section 100. He mentioned that there had been political interventions by national government in provinces such as that of the Eastern Cape and the Free State.
The Chairperson commented that the submission aimed at both changing policy and the Constitution. Certain submission were baseless and the Committee had to focus on the legal opinion expressed.
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