Public submissions on 2008 Constitution Review: consideration

Constitutional Review Committee

14 August 2008
Chairperson: Mr D Montsintsi (ANC)
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Meeting Summary

The Committee went through the public submissions received as a result of Parliament’s annual call for submissions for suggestions for amendments to the Constitution.

The re-instatement of the death penalty, the protection of children and victims of crime, the name change of South Africa, the establishment of Shariah law were amongst those constitutional amendments being sought.

The Committee ruled on several of these matters as relating to policy and not subject to constitutional amendment.

Meeting report

The Committee went through the public submissions assisted by the legal advisers:

CR08 A: Beaty Naude Submission
Ms Naude’s proposal was to include additional victim’s rights in the Constitution. These rights should include that victims be treated with dignity and respect by the criminal justice system; receive protection, assistance and treatment; access to information about the criminal proceedings; receive restitution and compensation, and submit a victim’s impact statement to court which would draw attention to the harm suffered.

Adv Z Adhikarie (State Legal Advisor) stated that all these rights were already guaranteed in the Constitution; the Probation Services Act and the Victim’s Charter. The appeal was for these rights to be under a specific heading and not be generally included.

The opinion of the legal advisory was to ask for the Committee to confer it to the relevant Portfolio Committee

Mr A Gaum (ANC) said that this was a policy decision and a political matter and not a subject for constitutional amendment.

CR08 B: Alan C Brown Submission
The submission dealt with the equality clause of the Bill of Rights and proposed that Section 9(3) of the Constitution that prohibits unfair discrimination on the various grounds listed in this section be immediately enforced.

Ms Adhikarie stated that this submission did not fall into the ambit of the Committee and needed to be referred to the relevant department

The second submission wanted the re-instatement of the death penalty and stated that the Constitution should allow for the judiciary to pass the death sentence for offences such as murder and rape.

Ms Adhikarie submitted that the Constitutional Court case of S v Makwayane declared the death penalty to be inconsistent with all human rights as it violated Sections 9, 10 and 12 of the Bill of Rights.

Mr Gaum said that the ANC was not in favour the death penalty and recommended therefore that an amendment not be made on this issue.

CR08 C: N K Govind Submission
The first issue raised related to the re-instatement of the death penalty.

The legal advisor recommended that the Makwanyane argument applied and therefore the amendment not be applied. Mr Gaum agreed with this recommendation.

The second issue related to the number of provinces being reduced from 9 to 4 as this would reduce the duplication of government structures and services; allowing the provinces equally to become more viable economically; allow for a more equitable distribution of the population across each province; and prevent one province from becoming more economically sound in comparison to the other provinces.

The legal advisor recommended that this was a political decision and therefore not suitable for the Committee to comment on.

Mr J Jeffries (ANC) said that a review was being conducted by the Provincial and Local Government Department on this issue and that regulations regarding this would soon be drafted.

The third issue raised by the Govind submission was to amend the electoral system to that of a constituency based system. Section 190 and other related sections of the Constitution should be amended to allow for constituency based elections at national and provincial level and for floor crossing to be abolished.

Ms Adhikarie stated that the Fourteenth and Fifteenth Constitutional Amendment Bills addressing the floor-crossing concerns, were before the National Assembly.

CR08 D: G M Steenkamp Submission
The issue raised by the Steenkamp submission was that minors should not be allowed access to abortion without parental consent. It indicated that there was an inherent inconsistency for children under the age of 18 not being allowed to purchase alcohol yet children under 12 could have an abortion without parental consent.

Adv K Beja (State Legal Advisor) stated that this submission specifically related to Section 28 of the Constitution that dealt with the rights of children and also to the Bill of Rights.

Mr Jeffries said that this was not a constitutional issue but a political one as it related to the Choice on Termination of Pregnancy Act and the Sexual Offences Act.

Adv Beja agreed with Mr Jeffries in that this issue did not relate to discrepancies in the Constitution.

CR08 E: L N Hans Submission
Mr Hans suggested amendments be made to the Constitution so that the name of South Africa be changed to the People’s Republic of Azania; that the national anthem should not include any lines of Die Stem; the death penalty should be re-instated and that property obtained prior to 1994 be expropriated without compensation. It was further submitted that basic education should be free up to and including grade ten and that children be afforded basic human rights that included education, food and freedom from abuse.

It was Ms Beja’s opinion that the name South Africa was enshrined in the Founding Provisions of Chapter 1 of the Constitution as well as the lines of the national anthem. 

Mr Gaum addressed the two issues stating that the majority was in favour of the name of the country as well as the national anthem and that the Committee’s decision should state that this would not be amended. He also said that it was not in the best interests of country to require restitution of property without compensation.

Ms Beja stated that the right to education was a basic right and not a subject for constitutional amendment.

Mr Hans also submitted that judges not be allowed to postpone a case on more than one occasion if witnesses were present and that cases, especially those that related to murder, be concluded within three months.

It was the opinion of the legal advisor that the Courts were independent and only subject to the Constitution; and that this was not a matter for constitutional amendment but was related to the effectiveness of the judiciary.

Mr Hans also wanted the number of provinces reduced and it was noted that this matter had already been addressed by Adv Adhikarie.

Further it was submitted that health care be free for the poor and unemployed and that social security only be available to the unemployed if they had been retrenched and had proved that they were unemployable. This should be renewed every three months and be approved by a commissioner of oaths.

Again, the Committee stated that this was a policy issue and did not relate to constitutional amendment.

It was also submitted that affordable two bedroom housing be made available to the poor at the state’s expense.

This was held to be a policy related issue and not applicable for constitutional amendment.

Mr Hans further submitted that taxes differentiate between rich and poor, that taxes not be paid on pensions and alternatively that public servants should be taxed. It was also suggested that public servants not receive pensions but receive a state pension of R940. The Committee also held this to be a matter of policy

Mr Beukman (ANC) noted that this submission was received from an email address with no indication of a physical address. He said that it was important that all future submissions include a physical address as it was part of the responsibility of the Committee to reply in order to note that the submission was given due consideration and inform the concerned party as to what the outcome of their submission was.

The Chair reiterated this point saying that all public submissions were welcomed and appreciated and would be considered.

CR08 F: L J Swanepoel Submission
It was submitted that the Constitution be amended to include a Bill of Responsibilities that would specifically relate to responsible parenting; responsibility to life where God was acknowledged as the Creator and Sustainer of all life; responsibility for the preservation of the Earth; responsibility of humans to develop their full potential ; responsibilities of rulers and officials to serve the public’s best interests and the responsibility of citizens to enjoy their property with regard to others.

It was the opinion of the legal advisor that these responsibilities were already obligated to in the Bill of Rights as duties and that many of them were already determined in a number of separate acts and legislation.
Mr Gaum agreed with the recommendation that these submissions were already contained in law.

CR08 G: M F Cassim Submission
Mr Cassim submitted that Cabinet Ministers be held accountable to Parliament and that Section 92(3) be amended to hold Cabinet members accountable by directing that quarterly reports on specified performance areas be submitted to Parliament.

It was further submitted that the information presented must be aligned to the information contained in the Estimates of National Expenditure and that Parliament needed to evaluate work in progress and not only after it was completed, in order to build public confidence.

It was the opinion of the legal advisor that reporting obligations were already dealt with in the Public Finance Management Act (PFMA) regulations that required annual reporting.
This therefore did not require constitutional amendment.

Mr Gaum agreed and said that this was a policy related matter.

CR08 H: Independent Civic Organisation of South Africa (ICOSA) Submission
It was submitted that a review of state funding of political parties be held and that Section 28 of the Constitution be amended to make provision for the funding of political parties that participate at local government level only.

It was also submitted that the Public Funding of Represented Political Parties Act be amended to include political parties at local government level that had received more that 30 000 votes in the previous local government. It was further mentioned that ICOSA did not receive funding as it only had representation at local government level; and was therefore unable to compete with larger parties.

It was the opinion of the legal advisor that this was a policy issue and did not require constitutional amendment. The Committee agreed.

The second issue raised was that South Africa’s name should be changed to include Independent or Democratic State of South Africa as the name Republic of South Africa was introduced in 1961 under the apartheid regime.
The Committee replied that this issue had been addressed in a previous submission and that the name of country should not be changed.

CR08 I: Al Jama Submission
It was submitted that the recognition of Shariah Law be included within our constitutional framework.

The submission made specific mention of the Equality clause that should be changed in order to allow for legislation recognising Shariah Law to be passed. It also raised the issue of Islamic marriages stating that there was no legal framework that facilitated the resolution of differences if these were to arise; forcing the parties to litigate on this matter.

It was also submitted that a statutory commission of enquiry be established to hold a referendum that would decide whether to allow for Shariah compliant marriages or to retain the civil marriage system for Muslims.

It was the opinion of the Committee not to create a commission of enquiry into this matter and therefore not to amend the Constitution

Adv Adhikarie suggested that Shariah law was inherently discriminatory in respect of sexes and gender and stated that the consequences as dealt with in Shariah law, would conflict with the principles of equality in the Constitution

CR08 J: Christian Action Network Submission
A number of amendments to the Constitution were submitted, many of which were held to be determined by policy and not by the Constitutional Review Committee:

- Section 2 should be amended to include the words ‘in humble submission to Almighty God’
- In terms of Section 15, religious observances and education should be banned
- Section 22 dealing with the right to freedom of trade, occupation and profession be used to legalise prostitution.
- Section 27(1)(a) that states the right to have access to reproductive health care services led to legislation that allowed for abortion and that this contradicted the right to life stated in Section 11.
- Section 16, the freedom of expression clause, meant that pornography was protected. It was alleged that pornography objectifies and exploits women and fuels the sex trafficking industry.
- Section 9, the equality clause, should have ‘sexual orientation’ excluded as it could be interpreted as legalising paedophilia and other deviant behaviour.

It stated that God should be announced as sovereign and that this should be recognised in the Preamble to the Constitution. It also suggested that law-abiding citizens should have the right to obtain, carry, own and use firearms to defend life, liberty and property.

It suggested that religious societies be exempt from tax for erecting or repairing any house of worship. It also maintained that the freedom of expression clause did not extend to obscene, defamatory, blasphemous or profane expressions and that this should be punishable. Further, pornography should not be broadcast on state funded media.

It asked for the recognition of transfer of ownership of property in terms of a gift and that this should not be taxed. It suggested that youth offenders of serious crimes be treated like adult offenders. Also, parents had the right to educate their children; and the school curriculum should be based on moral and family values.

The submission asked for proper checks and balances to effect a true separation of powers and that there be direct election of the President. It also asked that citizens have the right to form a government by consent.

It asked for the creation of a civilian militia and that laws cannot be suspended without the consent of people’s representatives. It was maintained that a decentralised state should be established with most of the powers resting upon the local government, the family, voluntary associations, churches and individuals. It asked for a clear separation of powers with effective checks and balances and that Members of Parliament be directly accountable to their constituencies and not their political party.

It was the opinion of the Committee that these submissions related to matters of policy and not constitutional amendment.

CR08 K: T V Motsoeneng Submission
The Constitution should state that it is the supreme law that founds common law. This would eradicate the hierarchy of courts. It was submitted that Section 165(5) be amended to prevent courts from making orders of costs. It was further submitted that Section 153 be amended to direct that a municipality structure manage its administrative, budgeting and planning processes to give priority to business and economic initiatives of the community.

It was held by the Committee that the submissions by Motsoneng should be ignored as they were policy issues and did not affect the Constitution.

CR08 L: S Davis Submission
It was submitted that the onus to prove unfair discrimination be removed. It also stated that Section 9(5) contradicted Section 9(3) and should be deleted and that this would allow for fair and equitable treatment of all persons in every situation.

It was held by the Committee not to amend the Constitution on this matter.

CR08 M: K Faasen Submission
This submission related to the definition of hate speech, alleging that Section 9 and 10 of the Constitution must clarify when the violation of a person’s right to dignity was regarded as hate speech and when it was regarded as crimen injuria. It also stated that the Promotion and Prevention of Unfair Discrimination Act, 2000 did not give a clear understanding of the definition of hate speech which should clearly be set out in the Bill of Rights.

The Committee held that hate speech was not a protected form of speech and that this matter could be dealt with by legislation.

CR08 N: Institute for Constitutional and Labour Law Studies Submission
It submitted that the youth or free-born South Africans be excluded from affirmative action provisions. It stated that the exploitation of legislation that promotes Black Economic Empowerment in a manner not in line with the Constitution’s framework should not be tolerated.

The Committee held that South Africa had not achieved substantive equality and to amend this principle would conflict with the intention of Constitution.

Furthermore it was submitted that Section 23(5) of the Constitution be amended for legislation to be enacted that directed employers to negotiate with trade unions not classified as representative trade unions and that the rights of employees who were not members of the majority trade unions be protected

The Committee held that this was not a constitutional issue and should be referred to the relevant Committee as it was matter of policy. Mr Gaum agreed that a constitutional amendment was not necessary.

CR08 O: ACDP, Mpumalanga Submission
It was submitted that the Preamble of the Constitution be amended to read “in humble submission to Almighty God”

The Committee held that South Africa was a secular state and therefore such reference be omitted.

CR08 R: Freedom Front Plus Submission
It was submitted that the youth be included as a designated group in the Employment Equity Act.

The Committee held that this was a matter of policy and not be considered for constitutional review.

Mr Gaum requested that all the issues be tabled together in one document that reflected both submissions and decisions.

The meeting was adjourned.

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