Constitutional Amendment Bills: deliberations

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
17 October 2001
THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA AMENDMENT BILL, THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA SECOND AMENDMENT BILL; JUDICIAL MATTERS AMENDMENT BILL: DELIBERATIONS

Chairperson: Adv J H de Lange

Documents Handed Out:
The Constitution of the Republic of South Africa Amendment Bill [B 68-2001]
The Constitution of the Republic of South Africa Second Amendment Bill [B 78-2001]
Judicial Matters Amendment Bill [B 43-2001]

SUMMARY
The Committee completed the final stages of the deliberation on the Constitutional Amendments. The Committee also finalised the Judicial Matters Amendment Bill, which is now ready to be voted on. Members have to take this Bill to be considered in their caucuses. All these discussions were mostly technical in nature and very little principled discussion took place.

MINUTES
The Constitution of the Republic of South Africa Amendment Bill
Clause 10 and 230A
Clause 10 of this Bill was rejected because it and the original section 230 of the Constitution were to be combined to give rise to the new section 230A.

Clause 230A would allow municipalities to raise loans and also to bind subsequent municipalities to those loans. Mr Khala from the Department of Finance came before the Committee with two options for the proposed section 230A. The first proposal was the same as the position always had been. The Second was a new formulation preferred by the Department of Finance.
This new option provided:
'Cl230A(1) A municipality may raise loans for capital or current expenditure, but loans for current expenditure-
may be raised only when necessary for bridging purposes during a fiscal year; and
must be repaid from the funds of the same fiscal year.
(2) The council of a municipality may bind itself and a future council in the exercise of its legislative authority to secure loans or investments for the municipality.
(3) The exercise of the powers referred to in subsection (1) and (2) must be regulated by national legislation.
(4) National legislation referred to in subsection (3) may be enacted only after any recommendations of the Financial and Fiscal Commission have been considered.'

Adv de Lange was not satisfied with the Department's preferred option as it would result in the binding of the municipal executive, which could not be done.
Mr Khala said that the new option had been drafted to accommodate the concern relating to the binding of future municipalities. This had to be done in light of the fettering of a constitutional discretion that would occur.

Ms F I Chohan-Kota said the problem arose with the use of the words ' a municipality may raise loans…' It also arose in subsection 230A(2) where it provided that 'The council of a municipality may bind itself and a future council in the exercise of its legislative and executive authority…' Ms Chohan-Kota showed that the fault lay in the fact that firstly Section 160(2) referred to a municipal council an not simply a municipality. Only the municipal council and not the municipality as a whole could raise a loan. The reference to municipality in subsection (1) was thus incorrect. Furthermore, in terms of Section 160(2) of the Constitution, the raising of a loan was a function that could not be delegated, including to the municipal executive.

Adv de Lange then said that in the light of Section 160(2) of the Constitution, the first option for Section 230A must be the correct one. Mr Khala conceded that this was correct.

Another problem that Adv de Lange had with the Department of Finance's preferred option was that Subsection (3) provided that the exercise of the borrowing powers were to be regulated by national legislation. When the word 'regulated' was used it carried with it a number of connotations. The most important was that when you use the word regulated, then it could be assumed that the power being regulated was an original power. This would mean that the power of municipalities to borrow money was an original power, and Government's role was simply to regulate that power. Adv de Lange said that the power was not an original power, simply to be regulated by the Government. To provide as Finance wished, would be to completely change the principles involved as it was never intended to give municipalities an original power.

Mr Khala then directed the Committee's attention to the phrase relating to the repayment of loans for current expenditure. This was the subject debated by the Committee the previous day. The Committee was dissatisfied with the use of the word repaid as it was felt to create confusion. The Committee suggested that the clause be changed to provide that such loans "be accounted for" in the same fiscal year. Mr Khala indicated that he had discussed the matter with Mr Ismail Momoniat from the Department of Finance. Mr Momoniat said that to provide that the loan be accounted for in the same fiscal year would have been appropriate if the South African Government applied the accrual system. However, this was not so as the Government applied the cash system. The proper formulation, with regard to the intention, would be to provide that the loan "must be repaid from the funds of the same fiscal year."

The Constitution of the Republic of South Africa Second Amendment Bill
This Bill received little discussion. However the Bill now reflected Ms Camerer's call for three Provincial representatives on the Financial and Fiscal Commission. The only other issue which still needed to be resolved was the matter relating to the tenure of Constitutional Court judges. The Committee was considering a number of options that would first be debated in their respective caucuses and then voted on in a Committee meeting.

Judicial Matters Amendment Bill
Only minor changes had been effected to the Judicial Matters Amendment Bill since the last time this Bill had been discussed by the Committee. The Committee had agreed upon these changes and there was now little reason for the Committee to argue on or discuss the Bill.

Ms S M Camerer (NNP) did however express a concern relating to the wording in the new clause that would effect the insertion of Section 63A in the Criminal Procedure Act. This was the section that would allow the Head of Prison to release certain categories of prisoners if the prison population became so great that it constituted a real and imminent threat to the lives or human dignity of prisoners.

The section read "If a Head of Prison… is satisfied that the prison population of a particular prison is reaching such proportions that it constitutes a material and imminent threat to the human dignity, physical health or safety of an accused'. Ms Camerer's concern related to the word 'it' in that she could not understand what it related to. She submitted that the grammar in that particular section left a lot to be desired.

The Committee, responding to Ms Camerer's concern, suggested an array of alternative words. The Committee eventually recognised that the word 'it' was perhaps the best word in that context. Adv de Lange submitted that the intention was clear as the word 'it' clearly related to the prison population. Eventually the Committee resolved to the leave the clause as it stood.

Another issue was the whether Clause 63A(2)(c) would contain a 'must' or a 'may'. The clause read, "The clerk of the court must, without delay, cause the application to be placed before any magistrate or regional magistrate, as the case may be, who must/may consider the application in chambers. This decision had far reaching consequences. Adv de Lange said the choice between the two could be left to the voting process.

The Judicial Matters Amendment Bill was ready to be voted on. However, before this could happen party representatives would have to take the Bill before the caucuses.

The meeting was adjourned.