ATC170314: Draft Report of the Constitutional Review Committee on 2013 Public Submissions, Dated 14 March 2017
[The following report replaces the Report of the Constitutional Review Committee, which was published on page 4 of the Announcements, Tablings and Committee reports dated 14 March 2017]
Report of the Constitutional Review Committee on 2013 Public Submissions dated 14 March 2017
The Constitutional Review Committee, having considered the 2013 public submissions made on the review of the Constitution reports as follows:
The Committee, during the 2013 public submissions process received 13 submissions. The incumbent committee, upon commencement of its work, isolated matters that were outstanding from the Fourth Parliament, and the legacy submissions that were not considered by the previous committee were identified as needing priority. The submissions were categorised in accordance with; submissions that were ready for consideration, submissions that required a specialist or legal opinion, as well as submissions that do not speak to a review of the Constitution. The Committee decided to set aside the submissions from the aforementioned period, that were re-submitted during the 2015 submissions process, in order to consider them with those of the latter period. Thus, out of the 13 submissions, five submissions were re-submitted in 2015.
Following that process, the Committee invited submitters, who made submissions during the 2013 submissions period to make oral presentations. Out of the eight submitters, that were contacted to make oral presentations, only five could be located. In this case, on 15 April 2016, four submitters made oral presentations to the Committee. The fifth submitter will be included in the 2015 round of oral submissions.
Hereunder are brief summaries of the submissions from the public, as well as the Committee’s views and recommendations.
- Summaries of submissions
2.1 Submission 1 by Institute for Accountability in Southern Africa (IFAISA).
(a) Establishment of an Integrity Commission
The IFAISA proposes an establishment of anti-corruption Commission as a Chapter Nine institution, namely; “the Eagles” to address crime syndicates and corruption faced in South Africa. The submission refers to the effects of the judgment in the Glenister case, and the South African Police Service Act of 2012.
The Committee is of the view that the above matter requires an in depth discussion. It therefore, recommends that the submissions should be dealt with in September 2016.
(b) Proportional representation
The IFAISA proposes the committee to consider section 47(3) (c) of the Constitution for a review. The committee is of the view that, the Parliamentary legal advice pertaining an amendment of this section states that any amendment of the electoral system and representation in Parliament is a policy decision which requires deliberations and resolutions from party-political level of engagement.
The committee recommends that, the conclusion on this submission should be held in abeyance to allow for the electoral court decisions on the matter. The submitters will be informed of the committee’s decision in this regard.
(c) Reform of the Judicial Service Commission (JSC)
The submission requests a review of the selection of the JSC candidates. The submitters argue that, the powers of the JSC to fill vacancies in terms of section 178 together with the process of the appointment of the Chief Justice needs to be reviewed. The IFAISA’s opines that the proposal for the review of the Constitution in this regard is due to many political appointees in the JSC.
The committee is of the view that the matter was dealt with by the Portfolio Committee on Justice and Constitutional Development through a Private Member’s Bill. Thus, it should be left as it is. The submitters will be advised on the committee’s decision in this regard.
2.2 Submission 2 by Ms Mosiane
The submitter proposes that menstrual pains should be recognised when considering sick leave for women. The committee is of the view that, the submission is covered in section 22 of the Basic Conditions of Employment Act, No. 11 of 2002, which specifically deal with sick leave.
Based on the above, the committee is of the view that, the submission does not require an amendment to the Constitution as it is already catered for in existing legislation. The submitter will be advised on the committee’s conclusion in this regard.
2.3 Submission 3 by O Shembe
The submission pertains a proposal to amend the phrase in the Preamble of the Constitution. The submitter claims that, the phrase stating that “…South Africa belongs to all who leave in it” should be replaced with the phrase “…South Africa belongs to its legitimate and legal citizens”.
The committee is of the opinion that, in light of the xenophobic violence that was reported in the South African media, a focus should rather be on fostering unity among Africans than emphasising differences as means of exclusion. Furthermore, the Government of South Africa supports the international efforts to protect and assist refugees and asylum seekers. This is done through the provision of access to health facilities, schools and social services. In addition, South Africa as a signatory to the United Nations and the African Union conventions on refugees, is obliged to grant protection to refugees.
The Committee attempted to locate the submitter to no avail.
2.4 Submission 4 by Mr L Mahlatsi
The submitter proposes that the law ought to be changed to permit homeowners to protect themselves by killing armed robbers in self-defence. The committee is of the view that, in light of constitutional rights to life, human dignity, freedom and security, any degree of force or violence may executed lawfully in limited circumstances only. For instance, in the prevention of one’s own life. Additionally, self- defence is governed by common law and the use of force during the arrest of a criminal by police is governed by section 49 of the Criminal Procedure Act No. 51 of 1977.
The committee is of the view that, the submission is dealt with in the existing law and does not a warrant an amendment to the Constitution. The submitter will be advised as such.
2.5 Submission 5 by Support Public Broadcasting Coalition (SOS)
The submitters calls for the transformation of the South African Broadcasting Corporation (SABC) into a Chapter 9 institution as a way of protecting its independence.
The committee recommends that, since the submission was re-submitted in the 2015 period, it should be included when considering those.
2.6 Submission 6 by Deaf South Africa (DEAFSA)
The submission calls for the designation of the sign language as an official language.
The committee recommends that, since that submission was re-submitted in 2015. It will be considered during consideration of the 2015 public submissions. The submitters will be informed on the committee’s recommendation in this regard.
2.7 Submission 7 by Mr Nqabeni
Mr Nqabeni’s submission had two parts, i.e. proposal for a review of the rights of inmates and disapproval of same sex marriages. However, at the time the submitter made an oral submission, the focus was on the proposal around the review of the rights of inmates.
- Rights of prisoners
The submission proposes a review of the rights of inmates in correctional centres. The submitter expresses dissatisfaction with the provisions pertaining to the rights of arrested, detained and accused persons. The submitter’s dissatisfaction is based on the fact that prisoners receive facilities such as free accommodation, food and education which victims pay through tax.
The committee is of the opinion that, prisoners’ rights are protected under Chapter 2 of the Constitution, which covers the Bill of Rights. In this regard, section 35 of the Bill of Rights provides for the rights of prisoners to conditions of detention that are consistent with human dignity. Moreover, the statutory rights of prisoners and the rules the rules that the Department of Correctional Services must follow in running the correctional centres are enshrined in national legislation such as the Correctional Services Act of 1998.
The committee concludes that, the submission does not set out which constitutional provision requires an amendment. As such, the submitter’s concerns may be addressed through legislation. In this case, the submission will be referred to the Portfolio Committee on Justice and Correctional Services.
- Disapproval of same sex marriages
The submitter submits a disapproval with same sex marriages based on personal religious convictions. The committee is of the view that, the submission requires an in depth consideration and therefore, should be deliberated further at a later stage.
2.8 Submission 8 by South African Local Government Association (SALGA)
The submission proposes amendments to the following provisions:
- Section 67 of the Constitution on voting rights in provincial elections;
- Section 139 of the Constitution on provincial intervention in local government, which undermines the separation of powers; and
- Section 163 on funding for organised local government.
The committee recommends that, since the submission was re-submitted during the 2015 submissions period, it should be dealt with during consideration of the 2015 submissions.
2.9 Submission 9 by Holy Faith Mission Evangelical Church
The submitters submit that, the Khilovedu language should be included within section 6 (1) of the Constitution as an official language.
The committee agreed that the submission should be included in the list of the 2015 submissions that will be considered in September 2015. The submitters will be invited to make an oral presentation on the submission.
2.10 Submission 10 by Mr Ngobese
The submitter raises disagreements with existing legislation and Constitutional Court rulings. The submissions speaks to issues provided for under national legislation such as the Sexual Offence Act of 2009, the property clause in section 25 of the Constitution, and the Criminal Procedure Act 51 of 1977.
The committee is of the view that, the submitter should be invited to make an oral submission on his proposals.
2.11 Submission 11 by South African Veterinary Council (SAVC)
The SAVC submits that, the State Veterinary Services need to be centralised based among other things, fragmented delivery of services, poor coordination of services, as well as poor implementation of policies.
The committee is of the view that, the submission does not make reference to a specific constitutional provision, which it requires to be reviewed.
The Committee therefore, recommends that, the submission should be referred to the Portfolio Committee on Agriculture, Forestry and Fisheries as the monitoring of the implementation of the Animal Health Act of 2002 falls within its ambit.
2.12 Submission 12 by National House of Traditional Leaders (NHTL)
The submission proposes a review of the following provisions of the Constitution:
- Sections 41 (2) which deals with Co-operative Government
On this provisions, the NHTL recommends the inclusion of Traditional Councils as intergovernmental structures to facilitate intergovernmental relations.
- Section 151and 155 which deal with Local Government
In relation to the above, the NHTL proses an amendment of these constitutional provisions and municipalities to be replaced by Traditional Councils so as to expedite service delivery in traditional communities.
- Section 190 (1) (a) which deals with the management of national, provincial and municipal legislative bodies
The submitters propose that the Electoral Commissions must, in consultation with Traditional Councils, manage elections in traditional communities.
- Section 211 of the Constitution which deals with the recognition of traditional leadership.
The submission proposes an amendment of this provision in order to provide for the recognition of the institution of traditional leadership not in case law, but to also ensure that it is guaranteed.
The committee feels that, the matters raised in this submission do not necessarily speak to a review of the Constitution, but should rather be referred to the Portfolio Committee on Cooperative Governance and Traditional Affairs. The submitter will be advised in this regard.
2.13 Submission 13 by Professor M Mhango
The submitter requests a review of a Private Member’s Bill (the Bill) that was introduced by the late Hon. D Smuts MP in June 2013, to make provisions for matters pertaining the appointment of the National Director of Public Prosecution (NDPP) on the recommendation and approval of the National Assembly.
The committee is of the view that, the matter raised by the submitter was dealt with and finalised by the Portfolio Committee on Justice and Constitutional Development in 2014. The Portfolio Committee considered the public submissions received on the Bill. Subsequently, the Department of Justice and Constitutional Development responded to those submissions. Following due deliberations in February 2014, the resolve that the Bill was not desirable. The submitter will be informed on the aforementioned developments.
Report to be considered
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