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PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE AND LOCAL GOVERNMENT AND ADMINISTRATION SELECT COMMITTEE: JOINT MEETING
16 October 2001
COMMISSION 185 BILL:BRIEFING AND OVERVIEW OF PUBLIC HEARINGS
Acting Chairperson: Mr D Olifant (ANC)
Summary of the Public Submissions: Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill [B62-2001]
Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill [B62-2001]
A parliamentary researcher presented the Summary of Public Submissions.
The Department proceeded through the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill.
Summary of Public Submissions
Mr Sibanyoni, a parliamentary researcher presented the Summary of the Public Submissions on the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill [B62-2001].
Issues covered were definitions, administration of the act, overlap of functions, constitutional issues, powers and functions of the Commission, powers and function of the councils, indigenous languages, implementation and absence of necessary legislation, other issues.
Please refer to document on Summary of Public Submissions for further details.
Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill
Mr J Beukman, Chief Planner at the Department of Provincial and Local Government, accompanied by Dr P Bouwer, the legal expert at the Department, told the Committee that he would deal with the context and policy issues of the bill. They started with the preamble of the bill then proceeded through each clause. He said he would comment on the issues raised in the public hearings, giving background information on why the bill was formulated in this manner, however, this would not be covered at a single session.
The preamble is based on the preamble of the Constitution and has been part of the bill since its inception. There was general agreement on the preamble the only change being that the state law advisers shortened it omitting the previous section 185 on the objects of the Commission.
Part 1: Interpretation and Administration of the Act
Mr Beukman proceeded through part 1 and the question of whether communities should be defined at all arose. No accepted general definition of communities emerged from the public hearings.
Ms G Borman (DP) asked why was council not defined?
Mr Beukman replied that one of the definitions that is vague is the concept of a council, which the technical Committee tried to define but Cabinet did not approve it.
Clause 2: Administration of Act
Mr Beukman said the reason why a member of cabinet was identified here is because he has certain tasks in the bill in terms of regulations, appointment procedures, and the national consultative conference.
The issue was raised about the independence of the Commission. Why have a Minister if it is an independent Commission? The Public Protector stated he would prefer no Minister mentioned in this bill and changes were made in the bill to remove some of the duties of the Minister. At the moment the role of the Minister is administrative.
Ms M Lobe (ANC) asked if this provision was in line with other Chapter 9 institutions like the Gender Commission?
Dr Bouwer replied that some institutions do not have reference to a Minister as the Minister does not play any role in that framework but that does not mean it is not linked to a portfolio for purposes of administration.
Mr Beukman stated that this bill was part of the constitutional development portfolio and when there was restructuring it was agreed that the Department would finish the bill as they were halfway through it instead of passing it to Justice and Constitutional Development.
Cabinet has not made a final decision as to where it should be allocated.
Ms Southgate asked if this would that affect the finances?
Mr Beukman replied that the funds would be appropriated by parliament independently and not the Department of Justice.
Part 2: Status and Objects of Commission
Clause 3: Status of Commission
Mr Beukman asked if the independence of the Commission should be reflected in this bill?
Ms Borman asked why was its independence taken out by Cabinet?
Mr D Dlali (ANC) referring to clause 3 (b) asked why was "impartial" was inserted instead of "independence"?
Ms Lobe replied that she understands why independence was taken out as referred to in chapter 9 section 181(2) and section 181(3) of the Constitution. She was disappointed to hear the Department said they do not know why it was taken out because it is in the Constitution.
Rev A Goosen (ANC) referred to 3 (a) and said his understanding of the word "juristic person" is that this body would be a separate entity. He said that "independent" was left out because it was included in "juristic person" which is a separate body, with an independent right to act impartially.
Mr B Solo (ANC) asked why were they not adhering to the Constitution? He said they would like to have some consistency.
Mr Beukman said they were discussing this to achieve the best possible draft.
Ms Botha (DP) said if they want to enrich the bill they should do it at a different place adding that the "juristic person" did not link up to any of the other provisions.
Mr C Aucamp (AEB) begged to differ with her saying juristic person is part of the status.
Clause 4: Objects of Commission
This was based on section 185 of the Constitution but there were some amendments. On (a) the addition was "further the protection of" which came from submissions; (b) "unity among and within" was added; (c) added from the technical Committee; (d) comes from the Constitution.
The Chair said his culture was total destroyed by the past regimes and asked about a possible process of rebuilding such culture.
Ms Southgate said she did not see how that could be done and suggested instead that they should be united in their diversity.
Ms Lobe said she was in agreement with the issue of rebuilding which is in line with the concept of reconstruction and development of South African society.
Ms Southgate said she agrees with rebuilding but does not see the state playing the role of rebuilding.
The Chair said there were various interpretations of how cultures should be rebuilt.
Mr Aucamp said if any community had been deprived of the opportunity to develop and needed to be built up, then the Commission should assist.
Ms Solo (ANC) suggested that legislation in the Bill should allow the disadvantaged in factors such as language and culture to be recognised.
Ms Lobe said rebuilding should be integrated in the objects of the Commission and that this would be in line with the whole concept of African Renaissance.
Dr Bouwer said the law could force people to rebuild their culture; it must be in the hearts and minds of those people.
The Chair stated that clause 4 (1) (b) refers to existing cultures and not those that were destroyed. He suggested that government must create conditions for rebuilding those cultures that were destroyed.
Ms Botha asked if clause 4(d) could be expanded to include grassroots levels.
Mr J Kgarimetsa (ANC) said there was need to clarify this Bill. He said rebuilding was part of protection and that this Bill deals with acknowledgement and respect of the uniqueness of every community. This Bill ensures that no community should feel disempowered or marginalized.
Mr B Nobunga (ANC) observed that they were moving from an abnormal to a normal situation and when the normal situation had been reached the state could be exonerated from playing its role. For now it remains the responsibility of the communities and the state to help those cultures that were trampled upon by previous regimes.
Mr Aucamp said if they say the Commission has the obligation to rebuild, which department would have the capacity and the financial resources to do that? Rebuilding means supplying resources. She suggested that instead they should create an environment for rebuilding to be possible.
Mr Beukman said they would take note of this.
Dr Bouwer stated that rebuilding would also entail taking religious issues into considerations and asked what would be the implications of rebuilding religious communities?
Ms Lobe said there was a need to rebuild African religion especially those who believe in ancestors, which is inclusive of culture as well.
Part 3: Composition and membership of Commission
Clause 5: Composition
Mr Beukman said in terms of the composition the President would appoint the Commission no fewer than eleven and not more than seventeen members which is to give context to the requirements of 5 (3) that it must be composed in such a way that it is broadly representative of the main communities and that it reflects the gender composition. The other chapter 9 institutions have far less members than this Commission.
The Constitution states that "the composition of the Commission must be broadly representative of the main cultural, religious and linguistic communities in South Africa". The technical Committee consists of fifteen persons.Collectively they had to represent the various religions -Judaism, Islam, African Traditional Religion, Hinduism, and the main Christian churches were on that Commission. They had linguistic representatives from all eleven official languages –people who could speak all the eleven languages, heritage languages, Indian languages. Some members of the Commission had inter-faith experience covering broader aspects and cultural identities like Griqua and Afrikaner culture were represented. It is possible within the eleven to seventeen members to put a collective team together. There are lots of people with multiple identities and multiple skills when it comes to culture, religion and languages and those are type of persons that can make contributions to this Commission.
Ms Borman (DP) said she would rather see a smaller Commission than a larger one with powers to co-opt consultants and specialists to avoid a situation where other people feel excluded.
Ms Lobe asked if members of other chapter 9 institutions are appointed in the same way as this Commission?
Mr Aucamp said he supported the broadly representative technical Committee adding that in their submissions they said what was necessary was to look at somebody that was acquainted with group rights as opposed to individual rights.
Ms Lobe said the term "broadly representative" gave serious problems. She felt that the Commission should represent the rights of everyone as opposed to smaller constituencies such as that of the Afrikaners or Sotho-speaking people. She suggested that the Commission should be composed in such a way that it "reflected cultural, religious, and linguistic communities of South Africa."
Mr Dlali said the Human Rights Commission suggested guidelines referring to section 39 to maintain consistency and an all encompassing approach.
Mr Nobunga asked about the relationship between 5 (2) (b) and 5 (3) (a) and suggested that there should be qualification for those communities that are represented.
Ms Botha (DP) suggested that the word "main" be omitted in clause 5 (3) (a) . She said that this issue should be addressed as not everyone would be represented.
Mr Beukman noted this.
Dr Bouwer agreed that from the start "main" was a contentious issue because smaller communities would not be included. In the technical Committee there were communities represented that could not be defined as "main" which is important for acknowledging diversity when making appointments.
Clause 6: Qualifications for membership
Mr Beukman read clause 6 (1) (a), (b), and (c) and also clause 6 (2) (a), (b), and (c). He drew members" attention to that fact that a person is disqualified if he has "been convicted of a crime or an offence in which hatred based on race, ethnicity, gender or religion played a role."
Rev AD Goosen asked what is a "proper person" as written in clause 6 (1) (b)? He also stated that in clause 6 (2) (a) same standards should apply to NCOP members.
Ms Lobe asked what was the yardstick of measuring a person who was "fit and proper?" Could an MP, a member of the provincial legislature or councillor be a member of the Commission?
Mr B Nobunga on clause 6 2 (c) asked what if a person was given a suspended sentence, would this fall under the same category?
Dr Bouwer said that the requirement of "fit and proper" was exactly the reflection of what was stated in section 193 (1) (b) of the Constitution. "Fit and proper" conveys the emotion of appropriateness.
If an elected MP becomes a member of the Commission, the National Assembly membership would fall into a disrepute.
The Chair asked why there was inconsistency in the Constitution?
Dr Bouwer said this part was taken from section 47 (c), (d), and (e) of the Constitution
Ms Botha asked why were permanent delegations of the NCOP ignored in this regard only mentioning National Assembly members and councillors?
Mr Nobunga pointed out that there are situations where councillors have other remuneration.
Dr Bouwer replied that councillors were incorporated under the same principles of section 47 (1) of the Constitution.
Clause 7: Procedure for appointment of members
Ms Botha suggested that 7 (1) (a) should be looked at again
Mr Borman suggested that there should be a formula for selecting members.
Mr Aucamp commented that people to be appointed should have knowledge on community rights.
Ms Lobe said she had a problem with the phrase "fair-mindedness" which to her was vague.
Mr Nobunga (ANC) asked for clarification of clause 7 (3) (a).
Dr Bouwer, answering to some of the questions, said that section 193 (4) of the Constitution gives the President the powers of appointing members of the Commission and the role of the National Assembly is included in that process
On fair-mindedness he said this means that a person should command public respect and on section 7 (3) (a) where it says "the selection panel must select at least one and a half times the number of members to be appointed." Dr Bouwer explained this means that if the panel needs to appoint four members it has to select at least six people in the appointment process.
Clause 8: Chairperson
Mr Beukman said the Chairperson was appointed in terms of Clause 6 of the bill.
Clause 9: Term of appointment
Mr Beukman said the Chairperson would be appointed for a term of five years.
Clause 10: Conditions of appointment
Ms Lobe suggested that Clause 10 (2) be deleted.
Clause 11: Conduct of members
Mr Beukman informed the Committee that this came from section 185 of the Constitution.
Clause 12: Termination of membership
Mr Nobunga (ANC) asked how does one reconcile section (9) (1) where it says, "The term of the Commission is five years," with clause 12 (b) which says, "A person ceases to be a member of the Commission when that person resigns."
Dr Bouwer replied if a person resigns another person then replaces him.
The Committee proceeded through clauses 14 to 17 without amendments.
Part 4: Operation of Commission
Clause 18: Committees
Mr Dlali commented that the Human Rights Commission (HRC) made provision in this section for external representatives and asked if this was appropriate? Was this the reason for Committees and sub-Committees?
Dr Bouwer replied that the notion of sub-Committees means that the Commission can delegate some of its responsibilities. Clause 23 allows other people to be co-opted in assisting the Commission to conduct some investigations
Clause 19: Delegation of powers and assignment of duties
The Committee agreed to this clause.
Part 5: Function of Commission
Clause 21: Powers of Commission
Ms Botha (DP) said she was uncomfortable about the Commission compiling and keeping a database at national level.
Mr Beukman replied that Commission wanted to invite someone it would have some prior information on the person.
Part 6: National Consultative Conference
Mr Beukman explained that this consultative conference started on Heritage Day in 1998 and was repeated in 1999. The idea was to create a forum for different communities to interact with each other. The Commission was still obliged to report to parliament.
Ms Botha asked why was the conference not held in 2000 and 2001?
Mr Beukman answered that the Department of Arts, Culture, Science and Technology took over at this stage.
Ms Borman enquired about the cost of these conferences?
Mr Beukman replied that he would have to search for these figures.
The Chair told the Committee that they would continue with Parts 7,8 and 9 in the next session.
The meeting was adjourned.