Committee Report on 2005 Constitutional Review: discussion

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Meeting report

JOINT CONSTITUTIONAL REVIEW COMMITTEE

JOINT CONSTITUTIONAL REVIEW COMMITTEE
21 October 2005
COMMITTEE REPORT ON 2005 CONSTITUTIONAL REVIEW: DISCUSSION

Chairperson:
Dr E A Schoeman (ANC)

Relevant documents:
Draft Committee Report on 2005 Constitutional Review (email info@pmg.org.za)
Index of submissions received from the public (see Appendix)
Legal opinion of the Parliamentary Legal Services (not for public release)

SUMMARY
The Committee considered actions to be taken regarding submissions on which there had been no prior satisfactory resolutions.

It was decided to reword the Committee Report to remove ambiguities, and restyle it to avoid legal repercussions. On the issue of the Royal Bafokeng Nation, the Committee stressed the importance of consulting traditional leaders as part of the consultation process as required by the Constitution. The voting rights of prisoners were held to be entrenched in the Bill of Rights, while the issue of the death penalty was regarded as contrary to the Constitution and would therefore not be up for future discussion.

Regarding submissions on telecommunications, the Committee deciding to obtain more information from the relevant department and parliamentary committee. The issue of animal rights proved controversial, with the Committee electing to consult the Department of Environmental Affairs on that issue in 2006. The rights of pensioners were held to be adequately protected by the Constitution. The powers of provincial and local government bodies were discussed. The role and objectives of the Committee was scheduled to be discussed at a later date.

MINUTES
The Chairperson referred to a discussion from a prior meeting which had emphasised the need to explore and more accurately define the specific relevance of the Constitutional Review Committee. He re-affirmed the importance of establishing clarity on the Committee's specific goals and suggested having consultations with Mr M Friesland, of the Strategic Management Office of Parliament, to achieve this end.

Discussion on Submissions
The Chairperson stated that the nature of the discussion would be to deliberate Committee Report in order to improve its quality. He referred the Committee to page 1 which dealt with Section 45, and asked if members had any comments on that.

Mr J Jeffrey (ANC) suggested that the first paragraph of the section was too elaborate and should be simplified. He recommended that the second paragraph include specific dates by which the proposed outcomes should be achieved.

Adv Gordon, Parliamentary Legal Advisor, stated that Section 45(1) was not to be considered a legitimate submission, but merely a subjective presentation offered by the author, J Nhlapo.

Mr Jeffrey proposed that the ten sub-sections under discussion should be re-written as general points and the categories should rather be itemised in the index section. He added that a problem existed with the way in which those submissions had been summarised. He explained that due to the legal nature of the submissions, the appropriate method of expression would be to record the submissions either as strict summaries, or as full submissions. He justified his remarks by exemplifying the section on "land re-distribution", where the submissions specified the parties involved in the decisions taken, and explained that it could lead to legal action being taken by the parties, on the premise of misrepresentation. He stated that reports on submissions of this nature should be written in the passive voice in order to obviate such potential repercussions.

Ms S Camerer (DA) agreed with Mr Jeffrey.

The Chairperson noted his assent to the discussion, adding that the Report should merely describe the topic content and the wording should be of a non-subjective nature.

Ms Camerer expressed a concern that taking this course of action could diminish the interest factor of the submissions.

The Chairperson re-directed the discussion to page 1 of the draft Committee Report.

Mr Jeffrey commented that the section was well-headed but the first and second bulleted points should be combined to form a single point. He drew attention to the report on Royal Bafokeng Nation submission. He asserted the need for elaboration on the first point of the first page of the section, and, in conjunction with points three, four and five, insisted on the practice of consulting the relevant traditional leaders when making decisions on traditional matters. He emphasised the need to reword the points on the following page so as to achieve greater brevity, and therefore better clarity.

Mr. Jeffrey referred the Committee to the individual submissions in the section on crime, rape, robbery, etc. and questioned the legality of those submissions, citing the "Drive Alive Project" example by Mr M McConnell. He also drew attention to the submission by Ms G McConnell on the voting rights of prisoners, and stated that to disenfranchise this sector of the citizenry would require a constitutional amendment, which could only be considered by way of a significant majority poll. The status quo would therefore be maintained, as per the Bill of Rights.

Ms Camerer drew attention to Mrs McConnell's insistence on the re-introduction of the death penalty, stating that it should not even be a consideration, as the concept was unconstitutional.

Mr. Jeffrey and Adv Gordon were in accord with Ms Camerer.

The Committee reviewed the next summary of the submission by Ms N Tshoma, and were in agreement as to there being adequate provisions afforded by government to pensioners regarding their accommodation and health-care rights. The Committee would therefore not consider any policy changes.

The Committee members had no objection to maintaining the integrity of the policies regarding the "Checks and Balances" draft.

Ms Camerer asserted that in order to bring adequate resolution to these highly technical policies, the Committee should entertain, more fully, recommendations from the Department of Communications. This would achieve a more balanced and professional decision-making process regarding such policies.

Mr Jeffrey agreed with Ms Camerer regarding the wider employment of expert consultation, but argued that the Portfolio Committee should be consulted on such issues, as opposed to the Communications Department. He also stated the need for clarity on the Report's opening paragraph and referred to the part dealing with Section 181 as an appropriate example of rewording.

The Chair directed attention to the submission on "animal rights" from Rachid Patel & Company.

Mr Jeffrey commented that the existing legislation was sufficient and it was unnecessary to consider any policy changes.

Ms. Camerer disagreed emphatically with this statement, questioning the capability and legislative potency of the Environment Portfolio Committee in protecting animals. She asserted the need for consultation with the animal protection community.

The Chair suggested that the Department of Environmental Affairs be consulted in 2006, as there was not sufficient time left in 2005 to effect any meaningful changes.

Mr Jeffrey diverted the discussion to a point made in J M Nhlapo's submission, recommending the "deconstitutionalisation" of provincial government to alleviate bureaucratic constraints and to improve on local government service-delivery and resource-utilisation. He stated that this controversial proposal did not hold adequate value in order for it to be considered at that time.

Adv Gordon referred to Section 67 submission and explored the legal role of local governments and their constituent powers to perform their responsibilities.

The Chair welcomed Mr Friesland, of the Strategic Management Office of Parliament (who had arrived at that point in the proceedings) and asked him to brief the Committee on a clearer definition of the Committee's roles and objectives.

Mr Friesland stated that the Committee would, in future, be regarded as a mini-constitutional committee. He added that, due to time constraints, he would appreciate being afforded a future opportunity to discuss the issue in more detail, ideally before the Parliament adjourned this year.

The meeting was adjourned.

Appendix
JOINT CONSTITUTIONAL REVIEW COMMITTEE SUBMISSIONS: INDEX


1. Section 25………….…………………………………………………………A

  1. Bafokong Nation ……………………………………………………………..B
  2. Marriage……………………………………………………………………….C
  3. Crime/rape/ robbery, etc……………………………………………………..D
  4. Hendrik Verwoed High School……………………………………………..E
  5. Checks and Balances………………………………………………………..F
  6. Chapter 9………………………………………………………………………G
  7. Section 146…………………………………………………………………….H
  8. Section 165(2)………………………………………………………………….I
  9. Section 45 (1)…………………………………………………………………..J
  10. Patel & Co………………………………………………………………………

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