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CONSTITUTIONAL REVIEW COMMITTEE
27 June 2001
DELIBERATIONS ON SUBMISSIONS RECEIVED
Chairperson: Mr P Jordan
Documents handed out:
Executive summary of submissions received (see Appendix)
The Committee secretary presented the Committee with a report back on submissions that they have received in response to a media advertisement calling for public submissions on constitutional issues. Concerns were raised that the submissions had not been referred to the subcommittee for consideration. Consequently, members made suggestions on the possible routes to be followed by the Committee on its process. It was evident from the discussions that constitutional literacy in South Africa is a problem that needs addressing and suggestions had also been made in this regard.
The Chair explained that the agenda of the meeting was based on an executive summary of submissions received from the public. The submissions were in response to an advertisement calling for public comment on constitutional issues. The Committee secretary had compiled an executive summary on the issues on which the submissions had focused.
Ms M Smuts (DP) said that a subcommittee had been appointed to deal with public submissions. She added that this was the first time that she, as a member of the sub-committee, is seeing the executive summary and the subcommittee was therefore unable to make input. Ms Smuts suggested that the subcommittee itself be allowed to work through the submissions.
The Chair was uncertain as to whether it was necessary to refer the submissions to the subcommittee.
The Speaker, Ms F Ginwala, suggested that the Committee could identify priority areas on which the sub-committee should concentrate, thereby giving guidance to the subcommittee's work.
Ms S Camerer (NNP) reiterated that the subcommittee is supposed to deal with the submissions and then report to the Committee.
The Chair explained that the reason he had requested the committee secretary to go through all the submissions and summarise them is because the subcommittee would probably put most of the submissions aside and concentrate on a few. He requested the committee secretary, Ms V van Huysteen, to brief the Committee on the Executive summary report.
Ms Van Huysteen stated that most of the submissions had been from members of the public such as teachers, lawyers and even prisoners. The major theme of most of the submissions was safety and security. The focus was on crime and the problems associated with it. Amongst the issues that were raised were the right to bear arms, the powers of the police on search and seizure, the right of an accused to be presumed innocent until proven guilty as well as issues relating to the inefficiency of the police and the criminal justice system.
Mr J Jeffrey (ANC) asked if any submissions had been received from political parties. He felt that the report seemed selective in terms of the submissions that had been included in it.
The Chair said that there were no submissions from political parties. He pointed out that the report is not selective but rather that Ms Van Huysteen had grouped together submissions that dealt with similar issues.
Ms Camerer pointed out that many of the submissions were asking for the protection of rights that are already included in the Constitution. She asked if these persons had been informed that the rights they were asking for are already in the Constitution.
The Chair stated that it was not the duty of Ms Van Huysteen to respond to each and every submission. He suggested that perhaps an advertisement could be placed in the media responding to the submissions.
Ms Smuts firmly believed that the subcommittee has to address some of the more serious issues. Other members of the subcommittee agreed.
Mr M Moosa (ANC, NCOP) stated that a need exists for the Committee to have a discussion on what their mandate should be. He stated that his understanding of what the Committee should do is to keep the Constitution alive and to make the necessary amendments to it if it is needed. He suggested that if there are matters of constitutionality in the submissions, the Committee should deal with these accordingly. Issues raised in the submissions need to be brought to the attention of the relevant government departments, i.e. the firearms issue should be referred to the Department of Safety and Security. He emphasised that popularising the Constitution is Parliament's role. They should in conjunction with the Ministry of Constitutional Affairs draw up a budget for advertising campaigns on the Constitution.
Ms Ginwala addressed the Committee on parliamentary process. She stated that when the Committee reports to Parliament, it can have the report tabled in both Houses. If at that time it is decided that the Constitution needs to be amended, recommendations can be put forward. She believed that the State Law Advisors should be included in the process as not all the issues raised in the submissions are of a constitutional nature. On the issue of responding to the public, she said that administrative back-up needs to be provided to facilitate this process.
Mr P Smith (IFP) suggested that the response to the public can be in the form of a pro forma letter. It does not have to be specific. He asked whether the advertisement, as previously suggested, would be of a broad or specific nature. Mr Smith reminded members that his party has a standing submission to the Committee, asking for a constitutional amendment.
The Chair replied that they had not forgotten about it. He noted that a pro forma letter acknowledging receipt of the submission had been sent out. The letter that had been previously referred to dealt with specific responses to certain submissions from the public.
Mr M Surty (ANC, NCOP) stated that the broader issue seems to be on constitutional literacy. There seems to be a lack of understanding that the Constitution is the supreme law and that all other laws that have been passed are subordinate to it. The public needs to be informed on how the Constitution fits in with other forms of legislation.
Mr C Eglin (DP) suggested that the issues raised in the submissions should be categorised according to those that are covered in the Constitution, those that are not covered in the Constitution and lastly those that are covered in other legislation. The submissions could then be referred to the subcommittee.
Mr G Solomon (ANC) commented that a large portion of the submissions were based on perceptions and not on principles. He emphasised that they needed to isolate those issues that could be constitutionally reviewed.
Ms F Chohan (ANC) said that it the Committee seemed to agree that a response should be given to the public. She agreed with Mr Moosa that issues on constitutionality should be referred to their relevant Ministries to be re-worked. Ms Chohan was also supportive of Mr Eglin's suggestion of categorising the submissions and then referring them to the subcommittee. She emphasised that the Committee needs to have a systematic programme and agenda, which would allow members to prepare for meetings.
Ms Camerer noted that the Committee appeared supportive of Ms Ginwala's suggestion of submitting a report on the submissions to Parliament. The Chair agreed.
Mr Surty suggested that the next time the Committee advertises for submissions from the public it should specify the categories that they are calling for. He reiterated what he had said previously on constitutional literacy.
The Chair stated that the issue of constitutional literacy had come up but that the problem seems to be the modalities. Mr Jordan stated that Parliament needs to find the funding that would be required to engage in programmes of constitutional literacy. Once funding has been secured, the Committee should then meet with the Portfolio Committee on Justice and Constitutional Development to discuss the way forward for a constitutional literacy campaign.
Ms F Hajjaj (ANC) suggested that when the subcommittee has completed categorising the submissions, this document should be forwarded to members. The Committee agreed.
The meeting was adjourned.
JOINT CONSTITUTIONAL REVIEW COMMITTEE
21 June 2001
Mr Chairperson and members of the CRC
In the following few pages I have attempted to give a very brief summary of the submissions on Constitutional Review received this year.
Most of the submissions do not really fall within the ambit of this Committee. They are concerns of members of the public about certain aspects of their lives. The dominating theme in this regard is that of not being sufficiently protected against violence and other forms of crime. There is a theme running through many of the submissions that victims of crime are not receiving the care and concern that they expect, while criminals are protected and even cosseted. This is clear from the submissions concerning rights of criminals and prisoners, the death penalty, and the right to own, bear and use firearms in self-defence.
We received a total of 317 submissions this year. By far most of them pleaded for the right to possess, bear and use firearms (237). Most of the proponents in this regard mention that the Constitution provides for self-defence, but does not state how one may do so. Various people explain their personal circumstances, such as living on remote farms, smallholdings, etc; working in "rough" areas, having been hijacked, raped and brutalised in other ways, and generally feeling unsafe. Submissions that relate to this aspect include requests for the enshrining of the right of presumption of innocence until proven guilty (9), and to be protected from abuse from police and other officials of the state (2), which lead to the public's homes and persons being searched without a court warrant (4). Some of the submissions combine these aspects. The right to self-defence to be defined and fleshed out was also a popular request (7).
The feeling that criminals are treated better than victims of crime is stated by several people. Requests in this regard include that of prisoners to earn their keep; long-term prisoners not to be granted parole; criminals' rights to be limited while serving their sentences, including that of not being allowed to vote, that rapists be castrated, and that the death penalty be re-instated (26).
In addition, there are submissions requesting that Chapter Nine bodies should be more transparent and more accessible to the public, while another submission states that the appointment of Chapter Nine commissioners, the size, performance and efficacy of the Commissions are fraught with problems (Mr J M Hargovan's submission).
The issue of multilingualism is mentioned in two submissions, one of which requests that the Khoi, Nama and San languages be recognised as official languages.
Only one submission re HIV was received, requesting that the disease be made notifiable.
Other submissions request that certain rights be enshrined in the Constitution, or that the existing provisions in that regard be put into practice. These include the right to privacy at all times, non-discriminatory taxation, fair legislation, the right to hold intellectual property.
Political requests and suggestions include provisions regarding traditional and indigenous leaders, Khoi-San property rights to be included in section 25(7), MP's to have the right to cross the floor, political parties to make known candidates for each constituency before each election, permanent residents to be given the right to vote, Ministers not to amend laws unilaterally, etc.
One person (Mr A B Augustine) requested that the public be educated about the Constitution, and another person asked that amendments to the Constitution be relayed to the public, and that the Constitution booklet be reprinted to include all amendments.
The Free Market Foundation sent in a 48-page submission, touching on several aspects, including the Bill of Rights, Security Services (Police), traditional communities, accountability, property rights, the rule of law, provincial and local government, separation of powers, and transparency. It is well-documented, and deserves in-depth research. I will therefore make available to members a summary of that submission separately, at a later stage.
Vanette van Huyssteen
Committee Secretary: Constitutional Review Committee,
SUBMISSIONS RECEIVED FOR REVIEW BY CONSTITUTIONAL REVIEW COMMITTEE
Constitution to be reviewed every five (5) years only
Language issue - multilingualism not practiced in courts
Language issue - Khoi, Nama and San languages to be recognised as official languages
Chapter 9 bodies not transparent and approachable enough
Chapter 9 commissions - creation, size, performance and efficacy of concern - specific recommendations made
Awaiting-trial prisoners' rights infringed (eg, to reading materials) - Constitution to specify that rights of prisoners apply to sentenced as well as unsentenced prisoners
(Awaiting-trial prisoners have had no response to their queries to various government bodies/institutions/individuals)
Rights of domestic workers to be entrenched
Bill of Rights to make provision for rights as well as for responsibilities / obligations
* Request for constitutional Literacy campaign - Mr A B Augustine
Limitation of rights of convicted criminals - not clearly spelt out in constitution___3
Right of presumption of innocence until proven guilty, together with power and right of police to seek and confiscate (Firearms Control Bill?)_____________10
HIV needs to be made notifiable.
Independence of the judicialry to be entrenched_________________________3
Individuals' right to freedom of speech__________________________________2
No parole for long-term prisoners
Criminals to "earn their keep"__________________________________________2
Criminals to be divided into "low-risk" (house arrest only) and "high-risk categories and treated accordingly_______________________________________________2
MP's to have right to cross the floor
Political parties to make known candidates for each constituency prior to elections
Elected officials to be held accountable for financial management control in their departments
Residential and property rights to be entrenched___________________________2
Right to privacy____________________________________________________2
"Three strikes and you are out" policy to be incorporated re driving habits of South Africans
Permanent residents paying taxes to be allowed to vote
Minister not to amend laws unilaterally
Due process to be enshrined - no search and seizure without court warrant__________________________________________________________4
Right to self-defence - manner, including force, to be stated clearly (Firearms issue?)____________________________________________________________7
Compensation of victims of crime by criminal(s) by way of them earning payment in prison___________________________________________________________4
Fair/non-discriminatory taxation to be entrenched__________________________4
Right to fair legislation to be entrenched_________________________________4
Freedom from abuse by police or other state officials_______________________2
Protection of pensioners in the sense that foreign governments be persuaded to pay pensions to South African citizens returning to south Africa after retirement
Justice system to be empowered and compelled to uphold a court order
Definition of "business area", "light industrial area", and "industrial area" need to be clearly stated
Erasure of criminal records after 10 years after completion of serving sentence/paying fine etc
Pictures of present President and former president must be displayed in private homes, mosques, temples, schools, etc.
National anthem to be sung at all big functions, including cultural functions
Everyone to learn an African language
Rent control to be re-instated
Freedom of expression provision to be limited to exclude pornography and violations of people's dignity
Independent ombudsman to be appointed to protect public against fraudulent lawyers, incompetence, and conveyancing attorneys' exorbitant fees, etc
Constitutional Court provisions not in keeping with Constitution
Environment to be restored at State expense
Section 25(7) excludes Khoi-San claims to property rights
Schedule 2: Oaths and Solemn affirmation - to be extended to Traditional and Indigenous Leaders
Schedule 4 and 5: Should include functions of indigenous leaders
Section 181(1)(c) Institution to be established
Chapter 13: Remuneration of Traditional Leaders to be reconsidered, and the Commission's terms to be clearly defined.
Protection of unemployed to be enshrined in Constitution.
Amendments to Constitution to be relayed to public, and Constitution booklet to be revised and republished.
Foreigners to be denied easy SA citizenship
Constitutional court to be made more accessible, especially to the poor
Protection of consumers against certain methods of sale and debt collection
Rapists to be castrated
Public should have the right to report even small offences such as traffic violations
Protection of children against immorality, pornography, portrayal of violence, etc, on TV, in films and in advertisements
Laws re smoking to be applied to alcohol use
Animal rights to be enshrined in the Constitution__________________________5
Right to hold intellectual property to be enshrined
Powers of local authorities to be amended to allow them to run their own affairs
Death penalty to be re-instated_______________________________________26
Right to own registered firearms for self-defence, sport, hunting and for aesthetic value and inheritance to be enshrined_________________________________238
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