JOINT CONSTITUTIONAL REVIEW COMMITTEE
27 October 2006
DELIBERATIONS ON TERM “LEADER OF THE OFFICIAL OPPOSITION”, POSTPONEMENT OF DELIBERATIONS ON FLOOR-CROSSING & FREE STATE LEGISLATURE’S NUMBER OF SEATS, & FEEDBACK FROM DEPARTMENT OF ENVIRONMENT ON ANIMAL WELFARE

Chairperson: Dr E Schoeman (ANC)

Documents handed out:
Memorandum on the Leader of the Official Opposition issue presented by Dr CP Mulder (FFP) on behalf of the minority parties other than the DA
Legal Opinion on the Composition of Provinces Legislation
Proposal on the issue of the Leader of the Opposition clause (section 57(2)(d)) in the Constitution by committee member Mr A Gaum (ANC) (see Appendix1)

SUMMARY
Dr C Mulder, mandated by the smaller opposition parties, reported that the term “Official Opposition” and “Leader of the Official Opposition” created confusion, that it was a legacy of the previous parliamentary system, and that Section 57(2)(d) of the Constitution should be amended. The DA felt that there must be clear and cogent reasons to amend the Constitution and that the problem was a matter of sensitivity and perception and not of fact. “Official” meant nothing more than “recognised in the rules of Parliament”. The Constitution said that the rules must give due recognition to the leader of opposition. He did not think these sensitivities were sufficient reason to amend the Constitution. Mr Gaum proposed, as a way forward, that the Committee should acknowledge that the term was confusing and afforded the bearer of the title no legal or other authority, but that since the Committee felt that the Constitution should only be amended after due deliberation and with circumspection, the various parties should internally debate the issue with a view to reaching consensus. He urged the DA to contribute towards an acceptable solution. The proposal was seconded and agreed to by the Committee, including Dr Mulder, with Dr Delport recording his dissention, as he did not agree that there was any real confusion, and felt that the provisions of the Constitution had been inserted after due debate and with good reason. The Committee recorded that it was not setting up a vendetta against any person. It was also decided that this Committee suggest to the Joint Rules Committee that it must look further into the matter, since similar references appeared in the Joint Rules.

The Committee resolved that since the floor crossing issue was covered in a Private Members’ Bill being considered by that relevant Committee, it should not deal further with the matter, but rather wait for a referral by the Speaker. The Committee also considered a memorandum on the number of seats of provincial legislatures prepared by the Parliamentary legal advisors, and resolved that the Free State Legislature, and any other interested legislature, should be invited to address the Committee early in the new year. The Chairperson gave brief feedback that the Department of Environmental Affairs and Tourism had reported that animal welfare was the function of the Department of Agriculture, which had been asked to draw up regulations on traditional African slaughterings, and to give a report back by June 2007. It was noted that the Association for the Deaf would address the Committee on constitutional provision for the disabled early in 2007.
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MINUTES
The Committee Chairperson said that he had tried to maintain a very open door and accessible policy in his relations with the media. He said it was very difficult to react to articles in the press that did not give a true reflection of what was happening in the Committee. The committee had always tried to achieve consensus. It was dealing with serious constitutional issues and would like to move forward in a way that did not give rise to unnecessary emotion.

The Chairperson commented, on the previous week’s submission on a possible referendum on the death penalty, that he thought that the explanation given by the parliamentary legal division on why such a referendum would not be appropriate was very good. He emphasised that the committee had not decided that such a referendum may not be held, but had stressed that there were fundamental human rights at stake, which should not necessarily be affected by a popular vote. Similarly, in terms of the issue of Section 57(2)(d), he said that the committee had tried to move forward with circumspection and if necessary it would continue to do so. He said this was not an issue that should be forced by whipping up emotion.

Deliberation on the wording “Leader of the Opposition” in the Constitution and Joint Rules
The Chairperson stated that the first item was the finalisation of the issue of the wording “leader of opposition”. He had asked the smaller parties, if possible, to come forward with a resolution to this meeting and to debate the issue.

Dr C Mulder (FF+), representing the smaller parties, said that he was present in a dual capacity as member of the committee and whip of a smaller party. Of the 16 parties in Parliament, the 13 smaller ones met once a week. Some months ago this issue had been raised and discussed and at a meeting in the last week he was mandated by those parties to express their point of view. The smaller opposition parties were well aware of the sensitivity of the issue.

The confusion in the media and amongst the electorate arose on the use of the terminology. “Official opposition” and “Leader of the official opposition” had arisen mainly from the transition from the constituency system to one of proportional representation in the legislature. The reference in section 57(2)(d) was a relic from the previous system and accordingly had no place in the current system.

Discussion
Dr J Delport (DA) reiterated his view expressed a previous occasion that the Constitution was a document brought about through long and arduous negotiations between parties, and that there must be clear and cogent reasons before it should be changed. The only real reason advanced here was sensitivity on the part of the smaller parties about a title given to the largest opposition party. “Official” meant nothing more than “recognised in the rules of Parliament”. The Constitution said that the rules must give due recognition to the leader of opposition. That leader was given the right to speak first because the Constitution regarded the largest minority party as representing the largest portion of the minority-supporter electorate, and therefore that it was entitled to special recognition.

Dr Delport addressed specific issues on Dr Mulder’s memorandum. He said that South Africa saw a coalition government during the period of a constituency system. The existence of this system did not translate into having only two parties. In the British Parliament, there were several parties and at least three strong contenders, and yet this parliament also employed the title of “official opposition”. All the parties were happy to introduce the term ‘leader of the largest minority party’. However, he questioned whether it was really worthwhile to amend the Constitution in such a small way simply to cater to sensitivities that were not based on reality but on a mere impression of being downgraded. In fact this was not true since each of the smaller parties would get their turn to speak in terms of the rules. Every person in parliament was recognised, but there was a leader representing the views of the largest opposition grouping. Identifying and giving recognition to such a person out fostered the development of a strong democracy.

Mr F Beukman (ANC) said that the process of inclusivity was very important and that the smaller parties should possibly be invited to contribute at a later stage. He asked Dr Mulder if he could brainstorm the issue further.

The Chairperson referred to a previous Committee decision that any amendment should not detract from the status of the leader of the largest opposition party. He felt that the last six words in the section were the problem, but agreed that it was a valid question whether it was worthwhile going through the process of changing the Constitution for those six words.

Mr A Gaum (ANC) commented that Dr Mulder had advanced important arguments, but suggested that a possible way forward in the matter would be to adopt a proposal that the Committee, having deliberated on section 57(2)(d) of the Constitution, acknowledged that the term “leader of the opposition” was confusing, and that it had given rise to dissatisfaction amongst smaller opposition parties. The Committee recognised that this term did not afford such a person any legal or any other authority over any political party except its own. Since the Committee was of the opinion that amendments to the Constitution should be done after due deliberation and with circumspection, it would rather suggest that all political parties should internally debate the issue, with a view to obtaining a position of consensus.

Mr Gaum implored the DA to be sensitive to these concerns and to actively contribute towards an acceptable resolution. He believed that a resolution worded along these lines might be a way forward, but obviously would not be the finalisation of the matter, given the importance of the internal discussions that still had to take place within the parties.

The Chairperson then asked for a committee member to second the proposal, and asked Dr Delport directly if he would be prepared to do so.

Dr Delport refused to second the proposal. His point was that there was no real confusion, but rather sensitivity amongst the smaller parties. He said that if the reference to confusion was deleted and the proposal included the fact that there was sensitivity among the smaller parties about the term, and the fact that it needed to be discussed further, then he would second the proposal.

Mr A Moseki (ANC) believed that the DA’s own interests had meant that they could not see the issue the way other parties did. He believed the proposal helped all. He officially seconded the proposal.

The Chairperson said that the committee knew that the DA would like to retain the status quo, but that the section had created problems and was confusing. He said that if the issue could be resolved, it was not urgent and there should not be pressure on the Committee. He nevertheless suggested that the committee members apply their minds, as was done when the Constitution was first written. Any solution would be one of give and take, otherwise the matter would go nowhere.

Dr Delport said that if the Committee persisted with that motion, he wished to record his objection. Firstly, he did not approve of the allusion in the proposal to the title having creating problems. He said that there were no problems, other than the sensitivity on the part of smaller parties, possibly coupled with a desire on the part of the ruling party to degrade the status of the official opposition. Secondly, not a single hard reason had been advanced to interfere with the provisions of the Constitution, which were brought about by long and hard negotiation, and this provision was included for a reason. One could not assume that some meaningless title or position was put into the Constitution by mistake, as it must have been debated word for word. This was not about the DA, but about the Constitution. There were many views represented in Parliament, but there was a majority opposition view and surely that was why a special status was afforded to it.

Dr Mulder said that there was another, different view among the opposition parties. He said it would be an interesting exercise for the 107 MP’s who were not from the ruling party to elect their own representative. That representative might be a different person altogether from the leader of the largest opposition party. He said that there were also sensitivities involved in not wanting to change the Constitution, which was a living document that should reflect the realities of what was happening in an evolving system. For the reasons given before, he thought that the proposal advanced was a sensible one, because it did not commit to any direction but rather asked the committee members to reflect and find a combined solution. He accordingly would support this proposal.

The Chairperson said that the Joint Rules Committee brought the issue to this Committee because reference to the leader of largest minority party and reference to the leader of the official opposition appeared in the Joint Rules. The rules created confusion. He thought that this committee should suggest to the Joint Rules Committee that it must also look at the matter.

If Mr Gaum’s proposal should be accepted, it would provide time for deliberation and attempts to reach a consensus. He understood Dr Delport’s concerns, but did not think that this resolution presented his party with insurmountable obstacles. He urged committee members to follow a line that would enable them to go back to their parties to report that there had been a sensible decision by this Committee, so that it could move further. He again asked Dr Delport if he was prepared to support the decision.

Dr Delport said that he could not. He believed that the present position could only cause confusion amongst people who did not understand the language. He believed that this Committee should tell the Joint Rules Committee that it should bring very good reasons as to why the Constitution should be changed. It should motivate this in a better and more concise document than the one before the committee.

Mr Gaum said that the question of whether the committee should amend the Constitution was one issue, but the question of confusion was quite another. The term undoubtedly brought about a measure of confusion. However, it did not necessarily follow that the Constitution should be amended. He thought that the DA was partly responsible for the confusion as it used the term “leader of the opposition” on its election posters. Dr Delport had motivated quite strongly why the Committee should not amend the Constitution, but his motivation for lack of confusion did not ring strongly and the term did create the impression that there was a leader of the entire opposition.

Dr Mulder said that his memorandum was aimed at putting forward the point of view of the smaller parties. If there was a need for a clearer proposal, the smaller parties would bring one. Within the minority parties, few held the view that there should be no recognition of the status of the leader of the largest minority party. The clear position, however, was that there should not be a single person recognised as “the leader of the opposition”, that this was inappropriate, and resulted from a mistake in the drafting of the Constitution. This term clearly came from previous dispensation and should be rectified. He recognised the proposal on the table as an attempt to compromise and move forward. He therefore also supported it. He concluded by that if the committee moved completely away from the issue, the smaller parties would look for other avenues to pursue this matter.

Ms R Ndzanga (ANC) said that it seemed as if the Committee was discussing personalities, which were not important as far as the Constitution was concerned. The Joint Rules Committee was right to discuss this issue, as rules were not cast in stone. The rules did need to be changed from time to time, but the Constitution did not.

The Chairperson said that it must be stated categorically that this was not a vendetta against any person. That would not be in the spirit of the committee. As long as he had the privilege to sit as Chairperson he would see that the correct spirit prevailed. He said that the concerns of Dr Delport would be noted, but he urged that the committee to move forward in line with the proposals made. 

There was general assent by the Committee (with Dr Delport dissenting) to adopt the proposal by Mr Gaum.

Deliberation on floor crossing
The Chairperson reminded the Committee that at the last meeting it was announced that there was a private members’ Bill being considered by the relevant committee and that there should not be a duplication of work by two committees. The Speaker had been notified of the private Bill, and the onus was on the Speaker to refer it to this Committee. He asked whether Members would prefer that the Bill be discussed elsewhere and that they wait for the referral from the Speaker.

Dr Delport proposed that the committee follow this course. Members agreed to deliberate the matter no further until a firm proposal was presented by that other Committee. 

Deliberation on number of seats of the Free State Legislature.
The Chairperson indicated that the parliamentary legal advisor Adv F Jenkins was present. Members had agreed the previous week that the Free State Legislature should be invited to address the committee but that other interested provincial legislatures should also be approached to make their point. It was decided that there would not be time this year. These legislatures would appear before the committee at their own expense.

Adv F Jenkins (Legal Advisor to Parliament) referred to his memorandum, and explained that he had tried to set out data about the number of seats in each provincial legislature, compared with their population demographics. He highlighted three provinces that had the minimum number of 30 seats. He suggested these three provinces as being those most likely to share the problems expressed by the Free State Legislature.

The Chairperson believed that the Committee should not exclude any of the provinces from making representations, although he had reservations whether the larger provinces with greater legislatures would want to do so. He suggested that the committee should contact all the provinces for input.

Dr Delport suggested that an indication be given to the provinces of what information the committee would need to know, so that the documents prepared were more relevant and set out the nature of the problems.

The Chairperson noted that the committee was in agreement that all provinces be invited to comment and, if applicable, attend a meeting the following year.

Feedback from the Department of Environmental Affairs and Tourism
The Chairperson reported that the Department of Environmental Affairs and Tourism (DEAT) had responded that animal welfare was a function of the Department of Agriculture (DoA). He had been in contact with the DoA, who had been given very specific instructions to consolidate their Bills and if necessary look at new legislation. He also said he had written a letter to the Director of the Department of Agriculture to ask for a report back by no later than 30 June 2007 on progress. The Department had also been asked to draw up regulations concerning traditional African slaughterings, similar to those in place for halaal and kosher slaughtering.

Interview with Association for the Deaf
The Chairperson reported that he had received a request from the Chairperson of the Association for the Deaf asking for a personal interview with him. The organisation was concerned with how the Constitution accommodated the disabled. He had suggested that instead of a personal interview, the Association should come and address this committee+ early next year.

The meeting was adjourned.

APPENDIX 1

SUBMISSION BY ADV GAUM

The Joint Constitutional Review Committee having deliberated on section 57(2)(d) of the Constiitution

1. Acknowledges that the term “leader of the opposition” is confusing and has given rise to dissatisfaction amongst smaller opposition parties.
2. Recognises that it does not afford such a person any legal or any other authority over any political party except its own
3. Is of the opinion that amendments to the Constitution should be done after due deliberation and with circumspection.
4. Suggests that all political parties should internally debate he issue with the view of obtaining a position of consensus.
5. Implores the DA to be sensitive to these concerns and to actively contribute towards an acceptable resolution.