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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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Audio recording of meeting
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.
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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