Constitutional Amendment Bills: deliberations; Judicial Matters Amendment Bill: voting

Meeting report

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

Chairperson: Adv J H de Lange

Documents Handed Out:
Constitution of the Republic of South Africa Amendment Bill [B68-2001]
Constitution of the Republic of South Africa Second Amendment Bill [B78-2001]
Judicial Matters Amendment Bill [B43 - 2001]
Portfolio Committee Amendments to the Constitution Amendment Bill (Appendix)

SUMMARY
The Committee unanimously voted to pass the Judicial Matters Amendment Bill. The discussion on the two Constitutional Amendment Bills was very technical with little or none of the substance being altered. Debate ensued over Clause 15 of the Second Amendment Bill. The debate concerned the intention and proper wording of the subsection relating to the repaying of bridging loans. The position around this provision had already been changed several times.
There was also debate on the new Clause 3 which deals with Deputy Ministers. This debate concerned the placement of a number of commas as it was felt that these punctuation marks would have far reaching consequences for the meaning of the clause. This debate and the appropriate clause are elaborated below.

MINUTES
Constitution of the Republic of South Africa Amendment Bill
Ms F I Chohan-Kota (ANC) referred the Committee back to page 2 of the draft amendment Bill which contained a number of additional amendments. Here she referred to Clause 3 which amends Section 54 of the Constitution. This clause provided that " The President and any member of the Cabinet or any Deputy Minister who is not a member of the National Assembly may, subject to the rules and orders of the Assembly, attend and speak in the Assembly, but may not vote."
Ms Chohan-Kota's concern was that the section could be wrongly interpreted as the grammar was not ideal. One possible interpretation is that the phrase "who is not a member of the National Assembly" could be interpreted to apply only to the Deputy Ministers and not the Cabinet. There are also a number of other possible unintended interpretations to the clause. She submitted that a number of commas could be strategically placed to ensure the correct interpretation of the clause.

Adv de Lange was of a different opinion saying that he felt the intention and correct interpretation was clear enough.

It was then suggested that the clause be slightly changed, through the omission of some words and the addition of two commas. The clause would now read "The President, and any member of the Cabinet or any Deputy Minister who is not a member of the National Assembly, may, subject to the rules and orders of the Assembly, attend and speak in the Assembly but may not vote."

The Committee then considered one of the new clauses in the first amendment Bill; Clause 17 which would insert the new Section 230A into the Constitution. This section had created a problem and in each discussion in previous days the Committee had heard a different view, with a different position forwarded each time. This was because there seemed to be two conflicting views, both emanating from the Department of Finance. One view came from the Director General and the other from someone Mr Khala would identify only as 'a learned colleague'. When pressed on the difference of opinions, Mr Khala said that accountants and economists seldom agreed.

Section 230A will empower a municipality to raise loans, and bind itself and future councils to these loans. It provides that bridging loans could be taken out. However the section read that these loans had to 'be repaid within the same fiscal year'. The problem arose in respect of the wording. Originally the section provided that such loans needed to be repaid within twelve months. Since its inception the section has been changed several times. The previous day the Committee had heard from Mr Khala that the wording should provide that the loan should ' be repaid out of the funds of the same fiscal year'. The Committee settled on this position. However, Mr Khala came before the Committee today and explained that he had been informed by the Director General that this formulation could have the unintended consequence of allowing municipal councils to have operating deficits. The appropriate wording would then be to provide as the clause originally did, namely that the loan be repaid within twelve months, or be left as it presently was, namely that the loan be repaid within the same fiscal year.

Ms F I Chohan-Kota said that if the original formulation was reverted to, then it would be necessary for the original drafters to brief the Committee on that section once more. If the original provision was the correct one then the Committee obviously had mistaken or misunderstood the intention behind the clause.

Adv de Lange, having changed the clause repeatedly, had grown weary of the manner in which two conflicting opinions had come from the Department of Finance. He told the Department of Finance that matters were not dealt with in such a manner. If there was a concern to be addressed it was not done via the telephone but in Parliament. Adv de Lange told Mr Khala that unless he had one view from the Department of Finance or both those parties before him the next day, then he would leave the position as it currently stood in the draft Bill. The position in the draft Bill currently provided that the loan should be 'repaid within the same fiscal year'.

The other matter that was provided for in this Bill was the tenure of Constitutional Court judges. The position that the Committee settled on is as provided for the draft Bill attached.

Constitution of the Republic of South Africa Second Amendment Bill
There were no substantial problems encountered with this Bill and a new draft Bill was distributed.

Judicial Matters Amendment Bill
The Committee simply read through the Bill observing the renumbering that would occur as a result of the addition of new clauses to the Bill. The motion of desirability was passed and the Bill was adopted unanimously with amendments.

The meeting was adjourned.

Appendix:
As to be voted on

PORTFOLIO COMMITTEE AMENDMENTS
TO
CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA AMENDMENT BILL

[B 68—2001]

(As agreed to by the Portfolio Committee on Justice and Constitutional Development
(National Assembly) )

__________
NEW CLAUSES

1. That the following be new Clauses:

Substitution of section 54 of Act 108 of 1996

3. The following section is hereby substituted for section 54 of the Constitution:
"Rights of certain Cabinet members and Deputy Ministers in the National Assembly

54. The President, and any member of the Cabinet or any Deputy Minister who is not a member of the National Assembly, may, subject to the rules and orders of the Assembly, attend and [may] speak in the Assembly, but may not vote."

Amendment of section 58 of Act 108 of 1996

4. Section 58 of the Constitution is hereby amended by the substitution for the words preceding paragraph (a) of subsection (1) of the following words:
"Cabinet members, Deputy Ministers and members of the National Assembly—".

CLAUSE 5

1. Clause rejected.

NEW CLAUSE

1. That the following be a new Clause:

Substitution of section 93 of Act 108 of 1996

7. The following section is hereby substituted for section 93 of the Constitution:
"Deputy Ministers

93. (1) The President may appoint—
(a) any number of Deputy Ministers from among the members of the National Assembly; and
(b) no more than two Deputy Ministers from outside the Assembly,
to assist the members of the Cabinet, and may dismiss them.
(2) Deputy Ministers appointed in terms of subsection (1)(b) are accountable to Parliament for the exercise of their powers and the performance of their functions.".


CLAUSE 9

1. Clause rejected.

CLAUSE 10

1. Clause rejected.

CLAUSE 15

1. Clause rejected.

NEW CLAUSE

1. That the following be a new Clause:

Amendment of section 176 of Act 108 of 1996

15. Section 176 of the Constitution is hereby amended by the substitution for subsection (1) of the following subsection:
"(1) A Constitutional Court judge [is appointed] holds office for a non-renewable term of 12 years, [but must retire at] or until he or she attains the age of 70, whichever occurs first, except where an Act of Parliament extends the term of office of a Constitutional Court judge.".

NEW CLAUSE
NEW CLAUSE
1. That the following be a new Clause:

Insertion of section 230A in Act 108 of 1996

17. The following section is hereby inserted in the Constitution after section 230:

"Municipal loans

230A. (1) A municipal council may, in accordance with national legislation—
(a) raise loans for capital or current expenditure of the municipality; and
(b) bind itself and a future council in the exercise of its legislative and executive authority to secure loans or investments for the municipality.
(2) Loans for current expenditure—
(a) may be raised only when necessary for bridging purposes during a fiscal year; and
(b) must be repaid within twelve months.
(3) National legislation referred to in subsection (1) may be enacted only after any recommendations of the Financial and Fiscal Commission have been considered.".

LONG TITLE

1. On page 2, from the seventh line, to omit all the words from "to provide for mechanisms" up to and including "legislative authority" in the ninth line, and to substitute:

to make enable a municipal council to bind itself and a future council in the exercise of its legislative and executive authority to secure loans or investments for the municipality