Public submissions With the Parliamentary Legal Division: deliberations

JOINT CONSTITUTIONAL REVIEW COMMITTEE
11 AUGUST 2006
DELIBERATIONS ON THE PUBLIC SUBMISSIONS WITH THE PARLIAMENTARY LEGAL DIVISION

Acting Chairperson: Mr R Ndzanga (ANC)

Document handed out:
Parliamentary Legal Division Response to public submissions on proposed Constitutional Amendments
IDASA submission on floor crossing to Joint Constitutional Review Committee
Commission on Gender Equality (Limpopo Submission)
Commission  on Gender Equality Part1 Part 2 & Part 3

SUMMARY
The Parliamentary Legal Division took the Committee through its responses to some of the issues raised during the public submissions on the Constitution. The Catholic Institution of Education also wanted section 100 amended in light of the unequal provision of services between the provinces. They said that section 100 interventions must be made peremptorily rather than discretionary, as it suggested that where a province could not or did not fulfil its executive obligations in terms of the Constitution or legislation, the national executive had to intervene.

Adv Vassen said that while the amendment was a matter of policy, it would impact on the current system of co-operative Government provided for in Chapter 3 of the Constitution. Section 40(1) also recognised that Government spheres were distinctive, interdependent and interrelated.

Mothuloe Attorneys said that the Constitution did not define the requirements or qualifications of Commissioners and that there was no yardstick with which to measure their performance. Adv Vassen said that section 193 of the Constitution stipulated that the Public Protector and the Auditor-General had to be “fit and proper persons to hold the particular office” and had to comply with any requirements prescribed by national legislation.

Mokoena wanted the SAHRC to be empowered to enter any institution to peruse all documents, including the policies of the institution in so far as human rights were concerned. Adv Vassen said that should it be feasible that the Commission be given the additional powers, this should be included in the SAHRC Act and not in the Constitution itself.

Mr Motsoeneng proposed that the President be directly elected by the people and not the National Assembly. Adv Vassen said that the feasibility of changing the electoral system was researched by the Van Zyl Slabbert Commission. Should the Committee deem this proposal appropriate, it would also need to undertake a detailed study of the electoral system and the pros and cons of changing the current system.

The pupils from Hendrik Verwoerd High School wanted the term of office of the Public Protector to be reduced from seven to five years, and that the incumbent must only serve for one term. Section 183 said that the term was for a non-renewable term of seven years. This was also a policy matter but in the Certification judgement of the Constitution, the Constitutional Court did not see the seven year term as being problematic. The pupils also wanted the SAHRC to hold a referendum on the death penalty. Neither the Constitution nor any legislation empowered the SAHRC to hold referendums. Also, the Constitutional Court has ruled on the issue of the death penalty and how it would infringe on many of the rights in the Bill of Rights.

IDASA argued that floor-crossing has had the unintended effect of undermining the spirit of open, accountable, transparent and participatory democracy as prescribed in the Constitution. However, the court in the case of UDM v President of RSA and Others said that floor-crossing was a political question but constitutionally, floor-crossing provisions were not inconsistent with the founding values of section 1 of the Constitution, multi-party democracy or proportional representation.
 

MINUTES
Response to the Catholic Institution of Education (CIE)
The CIE alleged that while section 9(2) of the Constitution provided that equality required that legislative and other measures to protect or advance persons or categories of persons disadvantaged by unfair discrimination may be taken, there were still inequalities in the provision of services between the provinces. They said that the right to education rights in section 29 had not been progressively and equally achieved between the provinces.

Adv M Vassen said that the CIE was not proposing an amendment to the Constitution but alleging an infringement of the right to education read with the right to equality. As the rights in the Bill of Rights were justiciable, the remedy in this case was judicial.

The CIE also said that section 9(4) did not create an obligation on provinces to enact legislation that prevented or prohibited unfair discrimination. In terms of item 23(1) of Schedule 6 of the Constitution, the national legislation envisaged in section 9(4) had to be enacted in within three years of the date on which the Constitution took effect. Thus, while it was a matter of policy to amend the section or not, Parliament had already enacted the Prevention of Unfair Discrimination Act of 2000. Also, the legislation referred to in the section was an area of exclusive national legislative competence and not one of concurrent national and provincial legislative competence.

The CIE also thought that for section 214(2) to be implemented efficiently it had to be linked to section 9 as the provinces must be “reasonably expected to realise the rights and obligations in the Bill of Rights [and that] it is unacceptable that learners in one province may be negatively affected due to unequal service provisions.

In accordance with section 214, Parliament enacted the Intergovernmental Fiscal Relations Act of 1997 whose aims were to promote co-operation between the national, provincial and local spheres of Government on fiscal, budgetary and financial matters and prescribed the process for the determination of an equitable sharing and allocation of nationally raised revenue. Adv Vassen said that in his view, the CIE incorrectly interpreted section 214. They thought that the determination of each province’s equitable share of the budget must be linked to the equality provision. The Constitution currently provided for this.

If an individual or a class of persons was of the view that the rights contained in section 29 had been infringed, they could petition a court for relief, but the CIE’s proposed amendment did not take the matter further.

The CIE also wanted section 100 amended in light of the unequal provision of services between the provinces. They said that section 100 interventions must be made peremptorily rather than discretionary, as it suggested that where a province could not or did not fulfil its executive obligations in terms of the Constitution or legislation, the national executive had to intervene.

Adv Vassen said that while the amendment was a matter of policy, it would impact on the current system of co-operative Government provided for in Chapter 3 of the Constitution. Section 40(1) also recognised that Government spheres were distinctive, interdependent and interrelated.

The CIE also wanted an amendment to Schedule 4 to provide a legal space for intervention by national departments with clear warnings to provinces on areas where their competence may be temporarily revoked. Adv Vassen said that this schedule did not contain interventions, and as the matter was dealt with by section 100, any amendment would be superfluous.

Response to Mothuloe Attorneys, Notaries and Conveyancers
Mothuloe Attorneys said that there were too many Commissioners appointed to each Commission. Adv Vassen said that the Constitution did not specify the number of Commissioners that had to be appointed to each Commission. Instead, the composition of each Commission was governed by national legislation and the number of Commissioners was specific to each Commission. This being so, it was inappropriate for the Committee to address this proposal unless it wanted to include such a limitation on the number of Commissioners in the Constitution itself. The Committee may refer the matter to the Portfolio Committee on Justice and Constitutional Development.

Mothuloe Attorneys also said that the Constitution did not define the requirements or qualifications of Commissioners and that there was no yardstick with which to measure their performance. Adv Vassen said that section 193 of the Constitution stipulated that the Public Protector and the Auditor-General had to be “fit and proper persons to hold the particular office” and had to comply with any requirements prescribed by national legislation. In accordance with this, relevant legislation specified additional qualifications for Commissioners. The qualifications and grounds for removal from office were already defined in both the Constitution and national legislation.

Mothuloe Attorneys also said that there was no demarcation between the functions of the Commissioners and the functionaries of these institutions, and in some cases, the Commissioners usurped the duties and functions of Senior Management in these organisations. Adv Vassen said that these views were outside the purview of this Committee and should be referred to the Portfolio Committee on Justice and Constitutional Development.

Response to S Mokoena
Mokoena said that section 182 should be amended to allow the Public Protector to investigate people and violations committed in the private sector. While this was a matter of policy, Adv Vassen said that such a proposal would impact on the role of other investigatory bodies. Also, the function of the Public Protector was to strengthen and support Constitutional democracy and not to adjudicate or investigate violations of the rights of the general public in all matters. If the role of the Public Protector was expanded, it would overlap with the work of the South African Human Rights Commission (SAHRC) and would require additional resources and infrastructure.

Mokoena also wanted the SAHRC to be empowered to enter any institution to peruse all documents, including the policies of the institution in so far as human rights were concerned. Adv Vassen said that should it be feasible that the Commission be given the additional powers, this should be included in the SAHRC Act and not in the Constitution itself. As such, it was a matter to be dealt with by the Portfolio Committee on Justice and Constitutional Development.

Mokoena also raised issues concerning how the victim’s sexual history was revealed during the Jacob Zuma rape trial and how there was not an equitable observance of all religions by the State. As these submissions did not contain proposed amendments, they were not within the brief of the Committee for consideration.

Response to Mr J H Fourie
Mr Fourie proposed that section 9(5) be removed from the Constitution as it was “unfair to declare some forms of discrimination as fair.” As such, the thrust of his petition was at those sections that deemed listed forms of discrimination as fair. In the case of Brink v Kitshoff 1996 (6) BCLR 752 (CC), O’Regan J said that the equality clause in the Constitution was adopted in recognition that past discrimination led to patterns of group disadvantage and harm. Since this decision, the Constitutional Court had reiterated and re-emphasised the fact that the Constitution prescribed what remedial action must be taken.

While this was a matter of policy, Adv Vassen said that if the “fair discrimination” provision in section 9 was removed, it would prevent remedial or restitutionary measures being taken to address past patterns of discrimination.

Response to the SAHRC
The SAHRC commented on how far South Africa had progressed as a nation in achieving equality for persons with disabilities. They saw a need for greater emphasis and prioritisation to be given in Government policies and programmes to matters that concerned people with disabilities.

Response to the Human Rights Institute (HRI)
The HRI thanked the Committee for inviting it to make a submission but did not make any proposals.

Response to Mr T M Motsoeneng
Mr Motsoeneng said that the Chapter 9 institutions should be merged under a State Department to make them more accountable. Section 181(1) and (2) provided that the Chapter 9 bodies were independent and subject only to the law and the Constitution. This independence was further secured by section 181(3) that called on organs of state to assist and protect these institutions to ensure their independence, impartiality and dignity. Furthermore, no organ of state or person could interfere with the functioning of these institutions. Adv Vassen said that merging the bodies would significantly diminish their roles and independence and effectiveness as currently provided for.

Mr Motsoeneng also proposed that the President be directly elected by the people and not the National Assembly. Adv Vassen said that the feasibility of changing the electoral system was researched by the Van Zyl Slabbert Commission. Should the Committee deem this proposal appropriate, it would also need to undertake a detailed study of the electoral system and the pros and cons of changing the current system.

Response to the Commission on Gender Equality (CGE)
The CGE proposed amendments to the Commission on Gender Equality Act of 1996 and the Public Financial Management Act of 2000. As the submission did not propose any Constitutional amendments, it did not fall within the parameters of the Committee’s brief. Their proposals could be forwarded to the Portfolio Committee on Justice and Constitutional Development.

In its second submission, the CGE said that it was operating with only one Commissioner. They wanted a Constitutional amendment to provide for an external panel similar to the Judicial Services Commission to be set up to deal with the selection of members. Adv Vassen said that how Commissioners and other Chapter 9 institution members were appointed was a policy matter that had been incorporated into the Constitution for certainty. His view was that it was still a policy matter if they were appointed by an external panel as suggested by the CGE or in terms of section 193 in its present construction, provided that they were appointed in a manner consistent with section 181.

The CGE indicated that whereas section 184(2)(b) empowered the SAHRC to take steps to secure appropriate redress where human rights had been violated, section 187(2) did not empower the CGE to take steps to secure appropriate redress in cases of gender discrimination. Whether or not the CGE should be so empowered was a matter of policy. It should be noted that any unfair discrimination on the basis of gender would also constitute a human rights violation and as such the SAHRC would have jurisdiction act.

Response to pupils from Hendrik Verwoerd High School, Tshwane
The pupils said that Chapter 9 institutions needed to be more accessible to the public, especially the uneducated and the poor. Adv Vassen said that apart from the Public Protector, there were no specific provisions in the Constitution that required Chapter 9 institutions to be accessible to the public, especially to the marginalised.

The pupils also said that irrespective of all other principles, members of the Commissions should be appointed purely on merit. Adv Vassen said that section 193 of the Constitution stipulated that the Public Protector and the Auditor-General had to be “fit and proper persons to hold the particular office” and had to comply with any requirements prescribed by national legislation. Also, section 193(3) said that the Auditor-General had to have specialist knowledge of, or experience in auditing state finances and public administration. Also, relevant legislation specified additional qualifications Commissioners should have.

While it was a matter of policy whether or not to amend the provisions, Devenish (LAWSA, Vol 5(3), 2^nd Edition, para 303) said that the need for the Commissions to reflect broadly the race and gender composition of South Africa was essential to ensure that they had “legitimacy in the community at large.”

The pupils also wanted a Chapter 9 institution set up to promote and safeguard the rights of children and that such a body needed to report to Parliament twice a year. Section 28 of the Bill of Rights dealt with the rights of children. Adv Vassen said that that the creation of such a body would be a policy matter but he thought it would be inappropriate for it to be a Chapter 9 institution.

The pupils also wanted measures to ensure the impartiality of Chapter 9 institutions to be included in the Constitution. Adv Vassen said that these measures were already included in sections 181(1) and (2), along with sub-sections (3) and (4) and section 194. They also wanted the public to be informed on an ongoing basis about Chapter 9 bodies, their functions and how to contact them. Adv Vassen said that this was a policy matter but such detail would be better placed in legislation or policy documents.

The pupils wanted the term of office of the Public Protector to be reduced from seven to five years, and that the incumbent must only serve for one term. Section 183 said that the term was for a non-renewable term of seven years. This was also a policy matter but in the Certification judgement of the Constitution, the Constitutional Court did not see the seven year term as being problematic.

The pupils wanted the Public Protector to have the power to review court decisions. Adv Vassen said that section 182(3) expressly forbade this. This was consistent with section 165 which guaranteed the independence of the courts. They also wanted the Public Protector to report regularly to Parliament and give him power to make recommendations. Section 182(5) provided that all Chapter 9 bodies were accountable to the National Assembly and had to report on their performance at least once a year.. He/she could also make recommendations regarding the redress of any prejudice. Thus, the pupils’ amendments would not confer any additional powers on the Public Protector.

They also wanted the Public Protector to devise mechanisms to shorten legal processes. This was a policy matter but Adv Vassen said that this was not really consistent with the role of the Public Protector.

The pupils said that the SAHRC must report regularly to Parliament with regard to progress made in providing basic services such as health, housing, water and sanitation. Section 184(3) already imposed this responsibility on the SAHRC. The pupils said that the SAHRC had to promote respect for all persons regardless of their religious convictions or lack thereof. Section 184(1) gave the SAHRC this responsibility ands was tasked with promoting the Bill of Rights, including section 15 that specifically dealt with religion. Thus, any further amendment was superfluous.

The pupils also said that prisoners should lose their right to vote. This issue was brought before the Constitutional Court on tow occasions. The court said that given the history of disenfranchisement in South Africa, the right to vote held a special place in South Africa and any limitation of this right had to supported by compelling reasons. The pupils have not furnished the Committee with any.

The pupils also wanted the SAHRC to hold a referendum on the death penalty. Neither the Constitution nor any legislation empowered the SAHRC to hold referendums. Also, the Constitutional Court has ruled on the issue of the death penalty and how it would infringe on many of the rights in the Bill of Rights. The pupils wanted the SAHRC to impose heavier sentences on offenders. This was not a matter for the SAHRC to deal with and was dealt with in legislation and remained at the discretion of judges in terms of the common law.

The pupils wanted the powers of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities to be extended to enable it to stop discrimination on the basis of culture, religion and language. In terms of section 185(2), the Commission could not investigate violations of rights but could make reports to the SAHRC for investigation. Whether or not the Commission should be empowered in the manner proposed was a political consideration.

The pupils wanted the Auditor-General to be empowered to act immediately against perpetrators of fraud and not just report on irregularities. Adv Vassen said that the Auditor-General’s task was to report on financial irregularities and then report to the relevant authorities. It was then up to the National Prosecuting Authority and the South African Police Service to act on the information.

The pupils wanted the Auditor-General to make concrete and practical recommendations to Parliament. Section 188(3) already stipulated that the Auditor-General must submit audit reports to any legislature that had a direct interest in the audit. Any amendment would therefore be superfluous.

Response to Rand Water
Rand Water wanted to insert a section 38 into the Bill of Rights that defined and listed “essential services.” Also, section 23 of the Bill of Rights should be aligned with the wording of the Labour relations Act (LRA) of 1995. They said that the definition of “essential service” in section 213 of the LRA was confusing and should be clearly defined in the Constitution.

Adv A Gordon said that in terms of section 65(1)(d)(i) of the LRA, no person may take part in a strike if that person is engaged in an essential service. However, in terms of section 72 of the LRA, the essential services committee may ratify any collective agreement that provides for the maintenance of minimum services in a service designated as essential. Where such an agreement is in place, the minimum service will then be considered to be the “essential service.”

Adv Gordon said that the proposal by Rand Water was already captured in various sections of the LRA, but if Rand Water thought it prudent that the applicable sections be reworded along the lines they proposed, it would be better to place the revisions in legislations and not directly into the Constitution.

Response to IDASA
IDASA argued that the system provided for in the Constitution that related to the retention of membership of the National Assembly or a provincial legislature, after a change of party membership, merging of parties, subdivision of parties and subdivisions and merger of parties in the context of [an] electoral system premised on proportional representation, has had the unintended effect of undermining the spirit of open, accountable, transparent and participatory democracy as prescribed in the Constitution. 

They argued that floor-crossing in South Africa had to be examined “according to the electoral system within which it is practiced, and in turn, its legal manifestation and legal application where it applies.” Proportional representation of voters following national and provincial elections was distorted by floor-crossing and floor-crossing did not channel public opinion. Thus, it undermined participatory democracy as there was lack of accountability to voters.

Also, it affected smaller parties disproportionately due to the 10% threshold. The establishment of new smaller parties has had a substantial impact on the provision of public money to political parties. Public opinion disapproved of floor-crossing and was a reason of voter apathy.

Adv F Jenkins said that the court in the case of UDM v President of RSA and Others (1) [2002 (11) BCLR 1179 (CC) at para 11], said that floor-crossing was a political question but constitutionally, floor-crossing provisions were not inconsistent with the founding values of section 1 of the Constitution, multi-party democracy or proportional representation.

Ultimately, it was a policy matter. However, the Constitution Fifteenth Amendment Bill, a private member’s legislative proposal concerning floor-crossing has been referred to the Standing Committee on Private Members’ Legislative Proposals and Special Petitions by the Speaker (ATC, 11 April 2006).

Response to the Free State Provincial Legislature
The Free State Legislature requested a review of section 105(2) of the Constitution that related to the number of seats in a provincial legislature. The Free State’s membership was only 30 but the effective membership to perform oversight, consider legislation and ensure public participation was 17.

It requested a review of the section given the geographical area of the province, the fact that municipal councils were allowed more members and the fact that  the population size of a province was in constant flux, the formula based on the national census conducted every ten years appeared to be arbitrary.

Adv Jenkins said that the Committee had at least two options. It could consider redrafting section 105(2) to ensure that the geographical size of a provinces played a role in determining the number of seats in a provincial legislature or it could advise the legislature that its concerns would be best addressed to the Department of Home Affairs to help them amend Item 2 of Schedule 3 of the Electoral Act.

Response to Mr Motaung
Mr Motaung, a maximum security prison inmate, raised concerns about judicial processes, a lack of consideration of his HIV positive status and other substantive issues where he felt he was treated unfairly. Adv Z Adhikaire said that he should have directed these issues to the Constitutional Court as there was nothing this Committee could do to help him.

The meeting was adjourned.