Submissions for Constitutional Review: Legal Evaluation

MINUTES
The Chairperson welcomed the Parliamentary Legal Advisors and extended a special welcome to Professor J Hofman (UCT Law Faculty) who had been requested to give the Committee some legal advice on electronic media.

Mr J Jeffrey (ANC) indicated that he had only received the documents to be discussed a few hours before the meetings and was therefore not adequately prepared for the meeting. He pointed out that it was not the first time that documents had been sent late to members. The Committee’s last meeting was on 26 August 2005 and there had been at least two weeks to prepare for the meeting. Unfortunately everything was done at the last minute. It would have helped if the documents had been forwarded to members in time.

Dr E Palmer (Chief Parliamentary Legal Adviser) replied that his staff also had their normal workload in addition to preparing the opinions. They only had six legal advisors who received four to five requests for legal opinions on daily basis. The legal advisors had done the best they could given the existing constraints.

Mr Jeffrey said that the explanation that there were not enough legal advisors was not satisfactory. The minutes of the proceedings should indicate that this was unacceptable and the matter should be taken up with the Secretary to Parliament. The Rules Committee had also had endless problems with the late receipt of legal advice.

Ms S Camerer (DA) said that Members of Parliament who had offices in Marks Building had always complained about the late arrival of documents. It was surprising that this time they had received their documents in time.

Dr T Delport (DA) noted that only five committee members had attended the meeting and said that this was a disgrace. He said that the Chairperson should speak with the ANC members about attendance of meetings. Non-attendance of meetings was a motion of no confidence in the work of the Committee. This should be noted and taken up with the Whips. He requested that he be excused from the meeting because he had an Ethics Committee meetings to attend.

Ms R Ndzanga (ANC) said that she had also received her documents late and had not gone through them.

The Committee Secretary explained that he had sent the documents in time to the offices from which they had to be distributed to members.

The Chairperson said that he would take the matter further. With regard to attendance, only four members had tendered their apologies. It was difficult to proceed with the business of the Committee without sufficient members. However, the Committee could not afford not to proceed with the meeting.

Royal Bafokeng Nation submission
Advocate F Jenkins (Parliamentary Legal Adviser) said he had been requested to look at the submissions of the Royal Bafokeng in light of the impact of the Communal Land Rights Act. The question was whether that Act did not answer some of the concerns that had been raised. The short answer was that some of the concerns were covered whilst other were not. Their concern that the Constitution did not recognise the holistic view of their culture nor the interaction between their traditional leader, community and their land was addressed by the Act. They had said that the Constitution only referred to traditional leadership. The Communal Land Rights Act provided for committees to administer communal land. The community had the right to decide who would sit on the committee. He was of the view that the community could also decide to confer the authority to administer communal land on its traditional leader. There was a democratization of the control of communal land.

He said that another concern, which was also addressed in the Act, related to land allocation and land use. Land allocation and use was not a local government competency. The Act provided that they could still make decisions on land allocation and use. It was fundamental that the Act gave them a power that the Constitution did not explicitly give.

Advocate Jenkins said that the concern that traditional law should not be subjected to another law except the Constitution could not and was not addressed by the Communal Land Rights Act. The concern raised policy issues. Another concern that was not addressed by the Act concerned the absence of real legislative and executive authority in the hands of traditional leaders or communities.

Ms Camerer said that the Royal Bafokeng Nation had been complaining about this from the beginning.

Advocate Jenkins said that the position had not changed and was a result of incomplete negotiations concerning traditional leadership. There was a feeling that some concerns were never put forward properly during negotiations since 1994. Traditional leaders were of the view that they did not have any governmental powers. In the certification judgment the Constitutional Court had said that the constitutional principles and the new Constitution did not envisage that there would be real governmental powers given to traditional leaders. Traditional leaders were meant to have powers over cultural issues, which included land use. The Communal Land Rights Act would be against the Constitution should it give such powers. The whole application of the Act depended on the Minister of Land Affairs determining whether an area was a communal land. This was not an arbitrary exercise because there were certain criteria that had to be followed. One could anticipate a question from traditional leaders that, although the Act gave them powers, they were still dependent on the Minister. The fact of the matter was that even that exercise of power was subject to the Constitution and administrative law.

In conclusion he said that the Act was not yet in operation but the concerns were potentially addressed. In terms of recent case law, an Act could not remain indefinitely out of operation. Regulations would have to be made so that the Act could come into force.

The Chairperson said that the Act was being phased-in in KwaZulu-Natal province. The problem was that the province had not budgeted for its phasing in.

Discussion
Ms Ndzanga asked if the submission meant that the Royal Bafokeng Nation wanted to control all SeTswana-speaking people in the Republic irrespective of where they resided. Some people were removed from their land during Mr Lucas Mangope’s rule so that they could be nearer to and form one nation with him. Some people were against such a move.

The Chairperson replied that one would have to accommodate all traditional communities if the submission by the Bafokeng Nation was accepted.

Advocate Jenkins did not think that the intention was to have control over all SeTswana-speaking people in the country. They were lobbying for more control over the area that they considered was their communal or ancestral land. Their system of traditional law applied within a specific area and anybody in the area fell under the authority of the Kgosi. A change in their position would mean a change for all traditional communities unless the change would be limited to them. Limiting the change to the Royal Bafokeng Nation would raise constitutional issues because the Constitution applied to everyone in the country.

The Chairperson said that the Committee would deal with the merits of the submissions at a later stage. The conflict between traditional law and the Constitution had grave implications.

Ms Camerer said that the Royal Bafokeng had made the same submission in the past and there was nothing that the Committee could do about it.

The Chairperson agreed that the request was not new. It had been raised when Parliament dealt with the Communal Land Rights Act. The request could not be accommodated because it was not reasonable in the present dispensation.

Submission on Animal Rights
Advocate A Gordon said that the Committee had asked what was covered in the definition of the word "animal". The definition of animal was largely determined by the purpose of the legislation. There was no single definition that could apply in all legislation. Research had indicated that the notion of positive rights did not exist in relation to animals. South African legislation largely focused on the conduct of human beings towards animals. It criminalised certain conduct against animals. Legislation did not provide that animals had the right not to be treated in a particular way. Animal rights activists would argue that positive rights should be afforded to animals. The question had been asked why the current legislation was insufficient. The reason was that legislation was not really focused on animals. Animals were more incidental to the legislation. The legislation was remedial and did not say that a person could not do something against an animal. This could be the cause of the ineffective application of animal legislation.

She said that Advocate M Masutha (ANC) has asked if Section 24 of the Constitution was broad enough to incorporate animal rights. The answer to the question could be found in a careful review of the definition of the word "environment". The term "environment" was not defined in the Constitution. It was contained in legislation promulgated in terms of Section 24(b) of the Constitution. Such legislation included the Marine Living Resources Act and the National Environmental Management Act. Some cases had been brought before court on the basis of these Acts. The Constitutional Court had handed down some judgments in respect of these Acts and also pronounced upon the scope of the State’s obligations in terms of Section 24(b) of the Constitution.

Advocate Gordon said that the most important question to ask when looking at the environmental right was what was understood by the concept "everyone". The concept "everyone" in Section 24 was intended to indicate who had locus standi. After looking at the question whether the Bill of Rights applied to both natural and juristic person, one would argue that there was a human element embodied in Section 24(a). However, Section 24(b) was not really premised on the actual human element. It was a premise in terms of which one could incorporate animal rights. The Marine Living Resources Act was intended to promote conservation and secure ecological sustainable development in respect of marine ecosystems. There was a protection of marine resources as a result of this legislation. By and large Section 24(b) did make provision for the protection of animals.

Discussion
Mr Jeffrey asked if there was a country that afforded positive rights to animals.

Advocate Gordon replied that there were no "blanket" positive rights for animals. Animal rights took the form of what a particular country had identified as its need.

Mr Jeffrey asked if it would be correct to say that no country gave positive rights to animals. Advocate Gordon agreed.

Mr Jeffrey said that a submission from a certain Rashied Patel argued that the existing legislation was insufficient. Advocate Gordon had only indicated that the current legislation did not give positive rights to animals but did not say why the present legislation was insufficient. It would have been very helpful if she had practical examples of what should be done. It was fairly unlikely that South Africa would give positive rights to animals if nobody else in the world gave such rights to animals. The question was whether there was a problem as a result of gaps in the legislation or was it a problem of inadequate implementation of the existing legislation.

Advocate Gordon replied that animal rights activists were better placed to answer these questions. Parliament had enacted legislation and the communities concerned were better equipped when it came to identifying any gaps in the legislation. It might be helpful to have animals rights activists explain their positions before the Committee.

Mr Jeffrey asked if one could conclude that there were no gaps in the legislation. Advocate Gordon replied that she was unaware of any gaps.

The Chairperson said that in the German Constitution, where animal rights were specifically mentioned, the words "and animals after humans" did not give any human rights to animals because human rights were reserved for humans.

Ms Camerer congratulated the Chairperson and the legal team for researching animal rights properly. There was a tendency to dismiss animal rights activists without having done proper research on the issue. The Constitutions of Switzerland and Germany put obligations on the State to enact legislation to protect animals. Advocate Gordon had argued that this obligation was covered under Section 24(b) of the Constitution. The obligation to enact legislation to protect animals was of interest to South Africa given the huge resources in terms of wild animals. The question was whether it would not be preferable to strengthen Section 24(b) to ensure that the State enacted legislation for the protection of our resources, but with specific reference to animals. It was interesting to see that Germany and Switzerland had gone to an extent of demanding protection for its wildlife resources.

Advocate Gordon replied that marine living resources were indirectly protected by the Marine Living Resources Act but this was not the aim of the legislation. The platform for the protection of animal rights in terms of Section 24(b) was limited because it was linked to specific types of legislation. An argument could be made for the strengthening of Section 24. The section might have to be drafted in a way that would place an obligation on the State to extend the scope of the section to include animal rights. Section 24(b), in its current form, would find application for the protection of certain animals and not all animals. The section would have to be broadened if one was to protect all animals under any circumstances.

Ms Camerer said that one should consult the Department of Environmental Affairs to establish what sort of wording would be appropriate when broadening the scope of the section.

The Chairperson said that the most important question was whether the issue could be addressed by ordinary legislation. Would it detract from it if no constitutional changes were made?

Ms Camerer replied that the issue could be addressed by ordinary legislation. The problem was that there was no obligation put on the State to enact legislation to protect animals.

Dr Palmer said that the submission was about having animal rights in the Constitution. The question was whether South Africa was willing to take this route.

Ms Camerer replied that it was a Bill of Human Rights and South Africa would not go to the extent of having animal rights in the Constitution. There seemed to be merits in ensuring that human beings protected the animal resources of this country. It would be better to have reference to the protection of animals in Section 24(b) without giving them positive rights, as was the case in Switzerland.

Position of South African Local Government Association (SALGA)
Advocate Gordon said that she was also requested to make a presentation on the position of South African Local Government Association. She said that Dr Palmer had written a letter to the Secretary of the National Council of Provinces (NCOP) because they were better placed to comment on SALGA’s participation in the NCOP. In terms of Section 67 of the Constitution, SALGA’s participation was described as "when necessary".

Chapter 9 Institutions
Advocate M Ramurunzi (Parliamentary Legal Adviser) said that the questions that had been forwarded to the Legal Advisers were more technical than legal in nature. The first question was whether the concept "broadcast" included "telecommunication". With reference to Section 192 of the Constitution, he was of the view that the concept did not include telecommunication.

The second question was why the Independent Communications Authority of South Africa (ICASA) was not a Chapter 9 institution. There were different views on this issue. One view held that the omission of ICASA from Section 181 of the Constitution was due to an error. Advocate Ramurunzi did not share this view. He was of the view that ICASA was not listed in Section 181 because it was never intended to be a Chapter 9 institution. The only constitutional protection afforded to ICASA to regulate broadcasting was found in Section 192. There was no requirement for ICSA to comply with Sections 181, 193 and 194 of the Constitution.

The third question was whether the wording of Section 192 was in line with modern day technological terms and concepts. Advocate Ramurunzi said that there were a number of Acts that complemented the provisions of Section 192. These included the Independent Broadcasting Act, Telecommunications Act, ICASA Act, Electronic Communications and Transaction Act and the Convergence Bill. Most of the modern day technological terms and concepts were defined in those pieces of legislation.

The fourth question was what was the status of an institution established in terms of Section 192. Advocate Ramurunzi said that he did not think that ICASA would qualify as a Chapter 9 institution for the purposes of Section 181.

The last question was whether Section 192 should reflect the convergence of broadcasting and telecommunications. Advocate Ramurunzi replied that it was up to the Committee to make a decision in this respect. It had been very difficult to come up with the answers to the questions because there was a lack of court cases and articles written on the matter. Even the certification judgment was silent on the matter.

Ms Camerer assured the Committee that ICASA had never been intended to be a Chapter 9 institution.

Professor Hofman agreed with everything that Advocate Ramurunzi had said about the status of ICASA. It was indeed not a Chapter 9 institution despite the fact that it was located in Chapter 9 of the Constitution. Where else could one have put it? The issue really turned on the question of broadcasting. The Constitution was only ten years old but there had been some changes that had made its wording outdated. Ten years ago broadcasting meant radio and television. These were channels for influencing the public when it came to elections and other issues of importance. The spectrum had to be shared in a fair manner. These days there were so many technologies that sought to duplicate or paralleled radio and television. One could now listen to radio or watch television on the Internet or on cell phones. One could also speak to people on a computer. The whole system had crumbled although the vast majority of the population still relied on radio and television for information. People were finding the alternative sources of information to be more convenient.

He said that the issue was "do we need this kind of constitutional body to make sure that the scare resource of access to the public through the electronic media is being shared out in a more fair way". People who wanted the transformation of the Independent Broadcasting Authority (IBA) into a full Chapter 9 institution were agitating for it for reasons that had nothing to do with constitutional independence. There was great unhappiness with the way government was not only a regulator of the telecommunications industry but also an enormous shareholder through Telkom and Sentech. The feeling of everybody in the telecommunications industry was that the Department of Communications was stifling their growth by helping protect Telkom. The feeling was that ICASA would protect them and that they would get fair treatment from it which they would not get from the Minister. This was a highly contentious thing to say. It seemed that people were saying that they wanted fair treatment and the only way they could have it was by having a constitutionally independent body that could not be influenced by the Minister. The problem was that the Minister still influenced it to some extent because ICASA had taken over the constitutional responsibilities of the Independent Broadcasting Act and the general responsibilities of running the telecommunications industry, which ideally do not run together. The situation became more confused when the Convergence Bill and the new regulatory authority referred to in the Bill were added. It was inappropriate to have a constitutionally independent body regulating a particular sector of the economy. This did not happen with mining, transport or retail. Why was it necessary for telecommunications?

Professor Hofman said that, in terms of the division of authority paper that the Committee had sent to him, ICASA or the new body that would soon be established was supposed to be responsible for the implementation of legislation and micro policies. The Minister should be responsible for proposing and steering new legislation thought Parliament. This meant that the Minister would not be managing the telecommunications industry and the question was whether this would be constitutional. The question was whether there was a need to still have a constitutionally independent body to regulate something that was increasing becoming less of a scarce resource. Another question was whether such a body should be responsible for managing the telecommunications industry. None of the other Chapter 9 bodies with the exception of the Electoral Commission managed anything. They reported, promoted and encouraged information but did not run anything that affected a whole area of commerce.

Ms Camerer said that Chapter 9 institutions were institutions that supported democracy. The Electoral Commission and ICASA were sui generis. She asked if there was no room for updating the Constitution in terms of its terminology so that it would include reference to telecommunications. It appeared that the Constitution was silent on an aspect of society that was very real and growing out of control. The Convergence Bill was being re-drafted in the Portfolio Committee on Communications and it attempted to reflect reality. Was there no room to accommodate the new technology by referring to it in the Constitution?

Professor Hofman replied that he was unsure how to do it. He agreed that the word "broadcast" no longer achieved what it had intended to achieve ten years previously. The question was how to do it without stepping into a whole area of commerce. The pressure by people who would make or lose money as a result of decisions that would be made, would become enormous. He was unsure if he liked the idea of an independent body running the industry. Where was the accountability in such a body? The fact that there might be unhappiness with the way the Department was managing things was not a reason for abandoning the Ministerial/Departmental system of government. He would be happier with a body similar to the other Chapter 9 institutions that reported to Parliament on a regular basis about what was happening in the telecommunications industry that was important for protecting democracy. Such a body should not move into the area of who had the monopoly, what was the reasonable license fee and whether one could be compelled to lease to somebody else systems that they had spent a lot of money developing. The Competitions Commission was there to deal with issues such as these.

Mr Jeffrey said that the Constitution had envisaged something else to deal with the allocation of scare resources in order to ensure fairness in the market place. It was concerned with regulating broadcasting in the public interest and ensuring fairness and diversity of views. It was more concerned with the content of radio and television because of what the National Party had done in its many years in power. One was now talking about regulating an industry in order to ensure that it worked properly and this was something different. There were two key issues: what went out through the radio and television waves in terms of information and how the industry was conducted. He took the point that it was not desirable to have a constitutional body regulating a commerce aspect of society. An interesting question was whether Section 192 of the Constitution should be repealed. It did not make sense to have ICASA saying that it fell under Section 192 for part of the work it did and fell outside of the section for the rest of its responsibilities. It seemed that Professor Hofman was saying that broadcasting and telecommunications were one.

Professor Hofman replied that it was difficult to distinguish between the two. The fact that one could listen to radio on a cell phones made nonsense of the distinction because one did not need a radio license if there were more people listening through other channels. Radio stations might even say that their licences should be taken away. Then the question would arise about local content. The radio stations would have sidestepped all the local content issues that ICASA as the independent broadcasting authority required but they would still be broadcasting. There was no neat answer and the system, as is, was not very satisfactory. He did not like the way the IBA and ICASA would be joined because it muddied the water enormously.

The repeal of the section would create a bad impression. It would give the impression that the State wanted to take control over everything. The fact that the State was incapable of taking over everything because technology had got to the point where it would almost be impossible to control all means of communications was not the issue. People would still complain. He was unsure if he would not like to see some institution supporting democracy dealing with public communications and not the telecommunication industry because this was for the Minister to regulate. The Convergence Bill was almost like legislating for animal rights in the Constitution. South Africa was jumping to the front of the pack. There was only one country, Malaysia, that had done this already. India had tried it but had scrapped their legislation on the ground that they did not think they were ready. The problem was that everything that went out through any form of network wire or radio or wave would require a licence and this was "horrific". Why can a person publish a newspaper without a licence but be required to have licence before sending it onto the Internet? This was one thing that made him unhappy about the licensing regime under the Convergence Bill. There were all sorts of concerns about unsuitable content and other issues but there were other ways of addressing these rather than through licensing.

Ms Camerer asked if it would be correct to say that Section 192 had been overtaken by events. How could one capture want was intended to be expressed under Section 192? One could not deal with the Convergence Bill in this Committee. Would it be better to ask the Department of Communications to brief the Committee on how they saw Section 192 in relation to the Convergence Bill?

Professor Hofman agreed that the section was out of date. ‘Broadcasting’ did not cover everything that it had covered before. The Committee could not proceed with this issue without talking to the Department. The only way to capture everything was to set up a body that would at least report to Parliament and do something similar to what the Public Protector was doing.

Mr Jeffrey said that there was a view that there were too many Chapter 9 institutions. There was a feeling that there was an overlap between the South African Human Rights Commission and the Commission on Gender Equality, for instance. It was an issue of whether the responsibilities could be discharged by any existing institutions.

Professor Hofman replied that existing institutions could discharge such responsibilities but the Constitution would have to be amended to indicate the shift in an institution’s obligations. The advantage of hooking it up to ICASA was that ICASA was funded by licence levies.

The Chairperson thanked Professor Hofman for his contribution. Based on the quality of his submission, the Committee would use his services again.

Children’s rights
Advocate Z Adhikarie (Parliamentary Legal Adviser) provided a legal opinion on whether Section 28(1)(g) of the Constitution afforded protection to child detainees. She started by saying that "adequate" was a relative term. Section 28(1)(g) provided that "every child has the right not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under Sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be kept separately from detained persons over the age of 18 years". The right was strongly worded.

She said that she had been unable to find jurisprudence on this issue. The closest jurisprudence relating to children’s rights was S v Williams which dealt with corporal punishment and the right to dignity. In reading children’s rights the Constitutional Court was inclined to interpreting the right very strictly and also to take cognizance of all other rights that affected everybody. In the Grootboom case the obligation was couched in very positive terms in comparison to the wording in Section 28(1)(g). The right was adequate but the question was whether it was absolute. This section would offer more protection to children should the Committee decide that the right contained therein should be worded more positively.

Advocate Adhikarie also looked at whether the problem lay with the interpretation of the provision or the implementation of the legislation. The legislative framework was unsatisfactory and very scattered. Before sentencing, a child under the age of 14 could only be kept in a cell for a period not exceeding 24 hours. A child between 14 and 18 years also enjoyed the same protection but one had to consider the nature of the crime committed. It might well be that all existing fragments of legislation should be incorporated into the Child Justice Bill. Section 28(1)(g) was adequate but it was up to the Committee if it wanted it drafted in more absolute terms.

Discussion
Mr Jeffrey said that the Child Justice Bill would solve the problem relating to the existing legislative framework.

Mr M Masutha (ANC) asked if Section 28(1)(g) was silent on the issue of imprisonment as distinct from detention and if the two concepts should be read as meaning the same thing. He was of the view that detention would apply almost exclusively to persons who were awaiting trial and imprisonment would apply after sentencing if the person had been convicted.

Advocate Adhikarie replied that detention had been defined as including both before and after sentencing. It was intended to cover both for the purposes of Section 28(1)(g) of the Constitution.

Advocate Masutha said that Section 28(1) seemed adequate for the protection of the rights of a child who was in trouble with the law. It did not prescribe that a child might not be placed in a prison cell. It provided the basis for the approach that was being taken by the Child Justice Bill. The approach entailed moving away from keeping children in prisons to placing them in secure facilities which were also detention centres.

Ms Camerer said that there were two issues on which the Committee might want to deliberate. These were the possibility of amending Section 24 and Section 192 of the Constitution.

The Chairperson agreed that those were the two issues on which the Committee should deliberate. He said that the Committee would evaluate the submissions and make recommendations at a later stage. He thanked Members for attending the meetings and the legal advisors for their contributions. He implored members who had not attended the meeting to attend the next meeting on Friday 16 September 2005.

Mr Jeffrey said that he had gone to the Joint Ethics Committee meeting and Mr Delport had not been there. The meeting had not yet started because it had no quorum.

The Chairperson said that people had gone to much trouble to prepare inputs and some members tried their best to attend meetings. Members owed it to each other to be disciplined members of the Committee.

The meeting was adjourned.