Sepedi as Official Language, Gas & Electricity Supply, Devolvement of Functions for Animal& Meat Safety, Housing, Library,& Tran
Constitutional Review Committee
24 August 2007
Meeting Summary
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Meeting report
JOINT CONSTITUTIONAL REVIEW COMMITTEE
24 August 2007
SEPEDI AS OFFICIAL LANGUAGE, GAS & ELECTRICITY SUPPLY, DEVOLVEMENT OF
FUNCTIONS FOR ANIMAL& MEAT SAFETY, HOUSING, LIBRARY,& TRANSPORT ISSUES:
PARLIAMENTARY ADVISORS RESPONSES TO PUBLIC SUBMISSIONS
Chairperson: Dr E Schoeman (ANC)
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SUMMARY
The
Parliamentary Legal Advisors responded to public submissions made in relation
to proposed Constitutional amendments. No decisions were made by the Committee
at this meeting, which convened purely to hear the opinions of the Legal
Advisors. They addressed the submissions by the PAN SA Language Board and
Commission for the Promotion and Protection of the Rights of Cultural,
Religious and Linguistic Communities that Sepedi should be removed as an
official language from the Constitution. More research was needed. A submission
by the National Energy Regulator and EDI Holdings that supply of electricity
and gas become a national competence was argued by the legal advisors to be
addressed already in Section 155(7) of the Constitution. It was suggested that
opinions be obtained from the Departments of Minerals and Energy and Provincial
and Local Government, and that EDI and NERSA be asked to make oral
presentations. The SA Veterinary Association proposed that central government
have authority over provincial government in animal health and meat safety
issues. The advisors thought it was already covered by Section 146 of the
Constitution and the Animal Diseases Act.
The Departments of Provincial and Local Government and Agriculture would
be asked to comment. The Palmer Development Group had suggested that functions
of housing and transport be devolved to local government. The advisors believed
that Section 156 of the Constitution and the Municipal Systems Act already
allowed for this. Changing a Schedule would oblige municipalities without
capability to undertake functions. Dr Nash had argued that provincial libraries
should be removed from Schedule 5 and that a Task Team be established. The
legal advisors believed there was not necessarily a need for uniformity and
that this fell outside the duties of this Committee. Mr O Mndai had submitted
an unclear statement, which did not appear to be a matter for constitutional
review. Mr L Moleka asked that the Constitution should include property rights.
The legal advisors said these were already covered in the Constitution and
existing legislation and was not a matter for constitutional review. Mr U
Leibbrandt had raised the issue of differing vehicle licensing fees across
different provinces. The legal advisors pointed out this was permissible under
the Road Traffic Act and not a matter for this Committee. The Community Law
Centre had raised similar arguments to Palmer Development in relation of
devolvement of housing functions. They also suggested municipal transport be
devolved. The advisors noted that this was not a matter for constitutional
review. Their suggestions for land use planning and local economic development
should in their view be referred to other portfolio committees.
MINUTES
Adv Zuraya Adhikarie, Parliamentary Legal Advisor) noted that the
submissions had been of a technical nature in areas in which her team had had
no previous exposure.
Response to Submission on Sepedi language,
by Commission for the Promotion and Protection of the Rights of
Cultural, Religious and Linguistic Communities (CRLC)and the Pan South African
Language Board (PANSALB): Sepedi
Ms Refilwe Mathabathe, Parliamentary Legal Advisor, said that the submission
by PANSALB and CLRC had focused on the inclusion of Sepedi as an official
language under Section 6(1) of the Constitution. The region of Northern Sotho
consisted of people speaking different dialects of Sesotha Sa Leboa. Sepedi was
one of those dialects. It was submitted by PANSALB that elevating this dialect
above others to the status of an official language was incorrect. Ms Mathabathe said that this
issue was a policy consideration, not a legal question. It was necessary to
consider the financial implications of including Sesotho Sa Leboa as an
official language in the Constitution. School books were published in the official
languages (including the dialect Sepedi), but publishers were unwilling to
publish books in the other dialects as it was not financially viable to do so.
The question must also be asked whether there was in fact still a language of
Sesotho Sa Leboa, whether it was still used in its formal form, or if it was a
combination of dialects.
Ms Adhikharie believed that these questions would require more research.
The Chairperson said that he had been under the impression that the reference
to "Sepedi" had merely been a misnomer. Now it appeared that there
was a bigger problem,
Mr K Mokoena (ANC) said that although he was from Limpopo, he was not
Sepedi-speaking. Sepedi was spoken by the Pedi people of that region, who
represented only a small percentage, and there had been some resistance from
the non-Pedi people that this language
was being taught in their schools. If Sepedi were to be removed from its status
as an official language, many people would be happy. He felt that Sesotha Sa
Leboa was all-encompassing as it comprised all the different dialects and was
therefore more representative.
Mr J Jeffery (ANC) said that this was a rather emotive issue. A Sepedi-speaking
Member of Parliament had complained to him that Sepedi was not on the list of
languages used by Parliament, although Sesotha Sa Leboa was. He believed that
the province involved had to be consulted on the issue. The National Council of
Provinces (NCOP) had a huge role to play in this process. This Committee could
not simply decide on the issue without further interaction. Mr Mokoena had
provided a good overview, but a Sepedi- speaker would provide a different
viewpoint.
Mr A Gaum (ANC) believed that if Sesotho Sa Leboa were indeed the
all-encompassing language of the province, the Constitutional provision was
incorrect. This was a factual question. He was not sure whether this question
had to be resolved by the relevant Portfolio Committee or by the Joint
Committee on Constitutional Review.
The Chairperson said that he was not certain whether the Committee required
opinions from experts other than PANSALB and the Commission. They had already
provided the Committee with all the information they required. The Committee
could call them in to interact in person. The Chairperson cautioned that it was
difficult to remove status once it had been conferred. This Committee must also
guard against the temptation to pass the responsibility to another Committee or
body. Both PANSALB and the CLRC Commission saw this Committee as the
appropriate forum. This Committee could get the Department of Arts and Culture
to draft any amendment, as it did not actually deal with legislation.
An ANC member understood ‘dialect’ to refer to a variation of the same
language. He asked if Mr Mokoena was describing Sepedi as being a dialect of
Sesotho Sa Leboa, or if it was an entirely new language which had branched off
from the main language (similar to the way Afrikaans had grown from Dutch).
The Chairperson understood Mr Mokoena to have described Sepedi as a dialect.
Mr Mokoena agreed. He however was not sure what the alternative language to be
inserted into the Constitution would be named. Sesotho Sa Leboa included
everyone, while a mere reference to Sepedi would offend huge parts of the
province. In his view it had been incorrect to insert Sepedi in the
Constitution in the first place.
Mr Gaum asked if the primary language, Sesotho Sa Leboa was still spoken
somewhere. He asked if it was written somewhere or if it was just the
all-encompassing term for all dialects.
Ms Adhikarie felt that this issue required more research, although ‘desk
research’ would not assist.
Mr Jeffery felt that this Committee was not sufficiently qualified to solve
that question. He suggested that they all went through the submission again and
checked for gaps. It would also have to be referred to both Houses and to the
provincial government of Limpopo.
The Chairperson believed it was possible to formulate something with the
information at hand. There was sufficient information, as the submission had
been comprehensive and authoritative.. PANSALB would not have made this
submission if there was in fact no such language as Sesotho Sa Leboa.
It was agreed that no final decision would be made at this point.
Response to the submission by the National Energy Regulator and EDI Holdings
(Ltd) for Supply of Gas and Electricity to become a national competence
Ms Mathabathe said that the National Energy Regulator of South Africa
(NERSA) had argued for the supply of gas and electricity to become a national
competence. NERSA felt that they were unable to regulate municipalities in
their supply of electricity.
EDI Holdings (Ltd) submitted that the fact that electricity distribution was a
municipal function made it difficult for national government to regulate.
Municipalities failed to maintain the systems, resulting in blackouts and
backlogs. If electricity were to become a national function, national
government would be able to set standards and regulate electricity supply.
The Law Advisors were of the opinion that the Constitution would not have to be
amended for this purpose. Section 155 (7) of the Constitution already enabled
national and provincial governments to exercise oversight over municipalities.
Mr Gaum asked if the wording of S155 (7) went far enough to deal with the issue
raised in the submission.
Ms Mathabathe answered in the affirmative. It conferred legislative and
executive authority on national government to deal with municipalities, which
would be enough to enable national government to regulate these functions
effectively.
The Chairperson asked who would invoke Section 155 (7). He also asked what the
difference was between dealing with the issue by amending the Constitution, and
dealing with it by invoking this section. He asked which approach would serve
to strengthen the electricity supply process more.
Ms Mathabathe replied that if the amendment were to be effected, the whole
country’s electricity supply would become a national functional area. If
national government wanted a municipality to assist it would then specifically
have to assign this function to that municipality, or enter into an agency
agreement with the municipality. She reiterated that Section 155 (7) was wide
enough already to enable national government to oversee the regulation of
electricity supply in the municipalities.
Mr Mokoena referred to the crises in certain municipalities who had been unable
to get Eskom to supply electricity to them, and said that it appeared as if the
third tier of government had no teeth to force Eskom to supply electricity.
Ms Mathabathe said that some communities did not rely on Eskom, but were
supplying gas themselves. These were the communities experiencing problems.
Those obtaining electricity were being regulated by national government and
were therefore not experiencing these problems.
The Chairperson asked why Section 155 had never been used before if it was in
fact effective in covering the problems. He suggested that perhaps the bodies
should make oral submissions on the issue.
Mr Jeffery said that there had been a discussion on widening the powers of
national government with regard to this issue. Perhaps the Committee should
obtain a response from the Department of Minerals and Energy to obtain their
view.
The Chairperson agreed, and reiterated that the Committee should also call upon
EDI Holdings and NERSA to address the Committee.
Mr Mokoena proposed that the Committee also obtain an opinion from the
Department of Provincial and Local Government (DPLG).
The Chairperson agreed also with this suggestion. The Committee secretary would
attend to the issue.
Response to submissions by the South African Veterinary Association
Adv Koleka Beja, Parliamentary Legal Advisor, explained that the submission
by the South African Veterinary Association (SAVA) had proposed that central
government should have authority over provincial government in the areas of
animal health and meat safety.
Adv Beja felt that it was unnecessary to amend the Constitution to ensure
national government’s authority over the matter, since it was already provided
for in Section 146 of the Constitution. This section would allow national
government to override provincial where conflict existed between the two
spheres, if certain criteria had been met.
In addition the Animal Diseases Act (35 of 1984) stated that the
Minister had the power to make regulations pursuant to national norms and
standards.
SAVA had also proposed that the Constitution be amended to ensure that the
issue of veterinary services became a national competence. Adv Beja said that Sections 44 (2) and 76 of
the Constitution already made this possible and no amendments were needed. This
issue could also be addressed by the introduction of another piece of
legislation to address the issue of uniformity across provinces.
The Chairperson asked how this submission differed from the previous
submissions, since it also dealt with the problem of provincial competencies.
The problem had not been that the legislation did not address the problem, but
was rather an issue of capacity at provincial level. He suggested that the
Department of Agriculture should be called in to address the issue.
Mr Gaum added that DPLG should also be consulted on the issue.
The Chairperson agreed.
Mr Jeffery added that the Minister had announced a provincial review on the
powers of provinces, and it would be useful for the Committee to obtain a
briefing on that.
Response to submission by the Palmer Development Group: Devolvement of
functions of housing and transport to local government
Adv Beja said that the Palmer Development Group (PDG) had proposed that the
Schedules be reconsidered.. They referred particularly to housing and
provincial and municipal public transport, which they believed had to be
devolved to local government.
Adv Beja argued that this was already addressed by Section 156 of the
Constitution. Subsection (4) provided that national and provincial governments
must assign administration of listed matters to municipalities if the
municipality had the capacity to deal with the matters, and if this would lead
to most effective administration. In
addition the Municipal Systems Act (32 of 2000) made provision for the MEC of a
province to assign functions to a municipality if certain requirements were
met. Existing legislation thus already addressed the issues raised in the
submission.
Mr Mokoena said that municipalities had been granted the ability to render
health services but had not managed to achieve service delivery. That apart, he
agreed that Section 156 was sufficient to address the issue/
Adv Beja agreed. It was important to remember that not all municipalities had
the same resources and capacity. Changing the schedules so that a function was
automatically described as a municipal function would mean that it would be
devolved irrespective of whether a particular municipality had the capacity to
administer it. The Schedule did provide for municipalities to have more
functions devolved to it if they had capacity.
Ms Mathabathe explained that if a functional area was in Schedule Five, all
municipalities had the obligation to administer that functional area,
irrespective of whether they had capacity. It was however possible that
national government could assign other functions to municipalities who had the
capacity to administer these functions.
Response to submission by Dr M Nash: Library services
Adv Beja said that Dr M Nash had argued that provincial libraries should be
removed from Schedule 5 of the Constitution, and that instead this Committee
establish a Task Team to deal with the provision and administration of library
services.
Adv Beja felt that it was unnecessary to establish a Task Team, as functional
areas falling within Schedule 5 were provincial competencies. It was evident
from case law that municipalities had exclusive power to legislate in their
respective provinces only. The Committee should consider whether it really was
necessary for uniformity across provinces with regard to libraries. Adv Beja
believed that this was not the case.
The Chairperson said that this matter was outside the ambit of the Committee’s
duties and should be referred to the relevant Portfolio Committee.
Mr Jeffery said that this matter had been considered by the Minister of Arts
and Culture a few years ago, and the Committee dealing with the matter could
look at what was decided then.
Mr Mokoena asked if the Committee could not simply refer Dr Nash to the correct
forum to deal with the issue.
The Chair said that the purpose of this meeting was merely to interrogate the
opinions of the legal advisors.
Response to the submission by Mr O Mndai
The Committee agreed with the Adv Beja’s opinion that this submission was
unclear and not a matter for constitutional review.
Response to submission by Mr L Molekoa
Mr L Molekoa submitted that the Constitution should be changed to include
property rights. Adv Beja however explained that both the Constitution and
existing legislation already provided for these rights. This was a matter to be
dealt with by the courts.
Mr Jeffery commented that not everyone had the resources to approach the
courts, as this was expensive. Mr Molekoa should perhaps take the matter to the
Human Rights Commission.
The Chairperson said that this was not a matter for constitutional review
anyway.
Response to submission by Mr U Leibbrandt
Adv Beja noted that Mr Leibbrandt had not proposed an amendment to the
Constitution but merely raised the issue that vehicle licensing fees differed
from province to province. People would tend to get their vehicles registered in the Eastern Cape where
licensing fees were lower.
Adv Beja said that this was a provincial competence and it was evident from
case law that municipalities had exclusive power to legislate in their
respective provinces only. The National Road Traffic Act also stated that
provinces could determine their own licensing fees. She added that the question
as to whether there should in fact be uniform fees across the country was a
matter for the relevant Portfolio Committee to decide.
Response to submission by the Community Law Centre
Ms Mathabathe referred to the proposals in the submission by the Community
Law Centre dealing with housing. The presenter had also argued that this was
better dealt with at a municipal level. When functions were currently given to
municipalities, they did not have much policy control. They proposed grassroots
or community participation on these issues, which required intersectoral
co-operation.. However, as stated in the discussions on an earlier issue, many
municipalities lacked capacity. Ms Mathabathe proposed that these functions
could be devolved to municipalities having capacity, in terms of Section 156 (4) of the
Constitution. In the case of provinces, they could enter into agency agreements
with the municipalities.
Community Law Centre had proposed that municipal transport be devolved to local
level. Once again, Ms Mathabathe stated that this was not a matter for
constitutional review as there was already legislation dealing with this
matter.
An issue of Land Use Planning was also raised in the submission. In the absence
of legislation, it was argued, this function was difficult for municipalities
to discharge. Ms Mathabathe said that this needed to be addressed by
legislation and not by constitutional amendment
The issue of Local Economic Development was further addressed. The submission
had stated that municipalities required extra funds to discharge this mandate,
which was presently unfunded. Ms Mathabathe said that this required a policy
decision and not a Constitutional amendment. It should therefore be referred to
the relevant Portfolio Committee.
Mr Jeffery said that no-one had ever referred to the area of Local Economic
Development as an unfunded mandate in previous interactions.
Mr Mokoena asked if these matters would be referred to the relevant Committees.
The Chairperson reiterated that the purpose of the meeting was merely to
interrogate the legal opinions and not to make decisions. That would be done in
the next meeting.
The Chairperson ruled that the final submission, which had not been circulated
to Members, would also be discussed at the following meeting. The researcher
and Committee Secretary should provide a summary of decisions taken at the
meeting in order to assist the process.
The meeting was adjourned.
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