ATC080620: Report on Brief Summaries of Submissions

Constitutional Review Committee

REPORT OF THE JOINT CONSTITUTIONAL REVIEW COMMITTEE IN TERMS OF SECTION 45(1)(C) OF THE CONSTITUTION  FOR 2007 DATED 20 JUNE 2008

Section 45(1)(c) of the Constitution provides that the Joint Constitutional Review Committee (the Committee) must review the Constitution at least once annually.

In giving effect to section 45(1)(c), the Committee placed an advertisement in  the media in April 2007 in which it invited members of the public to make submissions that propose amendments to the Constitution. The Committee made a call for submissions generally on any area of the Constitution but also specifically encouraged the public to make submissions on the role, powers and functions of the three (3) spheres of government. 

In total, eleven (11) submissions were received from the public, ten (10) of the eleven (11) submission were received within the allocated time and one (1) was received after the closing date.

The Committee requested the Parliamentary Legal Services Office to consider the various submissions that proposed amendments to the Constitution in the light of current constitutional jurisprudence. 

Hereunder are brief summaries of the submissions received and the Committees views and recommendations thereon.

A: SUBMISSION BY THE COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES AND PANSALB – ERRONOUS DESIGNATION OF SEPEDI AS AN OFFICIAL LANGUAGE

The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (“CRL Rights Commission”) and PanSALB submitted that Sepedi, which has been designated as one of the official languages in section 6(1) of the Constitution is but a dialect within the general language that is Sesotho sa Leboa. They submitted that the designation in the Constitution should be the latter as opposed to Sepedi since the use of Sepedi elevates above all the other dialects within the language.

Recommendation

The Committee agreed that public hearings should be initiated in the Limpopo Province where the language is spoken. Arrangements are therefore in place to engage with communities, stakeholders and education institutions in Limpopo.

B: SUBMISSION BY THE NATIONAL ENERGY REGULATOR OF SOUTH AFRICA AND EDI HOLDINGS – ELECTRICITY AS A NATIONAL COMPETENCE

The National Energy Regulator of South Africa (“Nersa”) and EDI Holdings submitted that electricity and gas reticulation should be a national competence to allow national government to regulate the provision of electricity and gas to avoid power outages which are a result of poor maintenance.

Recommendation

The Committee agreed that the Department of Minerals and Energy (DME) and the Department of Provincial and Local Government (DPLG) should provide a speedy response on the issue. If necessary, NERSA and EDI Holdings would be called to address the Committee.
 

C: SUBMISSIONS BY SOUTH AFRICAN VETERINARY ASSOCIATION - ANIMAL HEALTH AND MEAT SAFETY ISSUES AS A NATIONAL COMPETENCE

South African Veterinary Association (SAVA) proposes a constitutional amendment “to allow central government authority over provincial government on animal health and meat safety issues”. They suggest that the Constitution should be amended so that all controlled diseases, all matters relating to the import of animals and products of animal origin and all certification for the export of animals and products of animal origin should be taken out of Schedule 4 of the Constitution and be made a national competence.

They allege that a fundamental problem is the fact that the Constitution does not give the national Department of Agriculture, the national department responsible for animal health, the authority over the provincial government and provincial veterinary services in turn. They further argue that “provincialisation” is counter-productive to disease surveillance and management and meat safety issues.

Recommendation

The Committee agreed that the Department of Agriculture and Department of Provincial and Local Government should provide an opinion on the matter. Further that the Committee would invite the Department and Ministry of Provincial and Local Government to brief it on the provincial review of powers and functions of provinces. 

D: SUBMMISSION BY THE PALMER DEVELOPMENT GROUP – BUILT ENVIRONMENT

Palmer Development Group (“PDG”) submitted that housing, which is a provincial competence, should be a local government competence since municipalities are responsible for housing and, indeed because the municipalities are responsible for planning, land use management and infrastructure and as such control key elements of the housing process.

They argue further that by assigning public transport to provinces and municipal public transport to local government, the Constitution creates a problem of major proportions which has resulted in duplication, conflict and inefficiency. They conclude that the functional area of public transport should be devolved to local government, at least in the metropolitan areas as the need is less severe outside the metropolitans. They state that the best way of doing this is through changes to Schedules 4 and 5 of the Constitution, alternatively an assignment of functions needs to be made by the Minister of Provincial and Local Government.

PDG finally submits that one of the areas of confusion in respect of Schedule 4A functions has been that whilst the Constitution lists these functions as areas of concurrent legislative competence, it does not specify who is responsible for the implementation of the function.

Recommendation

No recommendation was made in this respect.

E: SUBMISSION BY DR MARGARET NASH – PUBLIC LIBRARIES

Dr Nash in her submission claims that “in the absence of other information”, she assumes that “Cultural matters” in Schedule 4 Part A of the Constitution includes Public Libraries and that in areas of concurrent legislative competence, national government has primary responsibility to ensure that gaps in the provision of the relevant services are addressed. Dr Nash proposes that the Joint Constitutional Review Committee establish a Task Team to deal with the following questions:
Who should provide and administer Public Libraries?
How should they be budgeted for?
If municipalities that have run public libraries in the past are willing and able to continue, to whom should they apply for recognition and resources?
How can “overlaps” be reduced and scarce resources optimally employed?
What is our vision for libraries/information centres as essential building blocks in creating social capital?

With regards to “overlaps” in (d) above, she offers an example of three libraries within one square kilometre in the Mowbray area. Her vision in creating social capital is what she refers to as a need for our schools to become Centres of Lifelong Learning and Social Development.

The Committee requested the secretary to find the response from a submission which was forwarded to the Department of Arts and Culture (before 2004) on a similar matter – this would guide the Committee on this issue. 

Recommendation

No recommendation was made in this respect.

F: SUBMISSION BY MR JOHANN VERHEEM – CONSUMER RIGHTS

In his submission, Mr Verheem alleges that consumer interests and rights are not properly provided for in the Constitution. He recommends that a provision for consumer rights should be inserted in the Constitution.

Recommendation

No recommendation was made in this respect.
G: SUBMISSION BY MR O MNDAI

Much of Mr Mndai’s submission is unclear. He however, requests the Joint Committee to modify section 127(2)(f), which states that “The Premier of a province is responsible for calling a referendum in the province in accordance with national legislation” and section 143 (2)(a) of the Constitution, which provides that “Provisions included in a provincial constitution or constitutional amendment in terms of paragraphs (a) or (b) of subsection (1) must comply with the values in section 1 and with Chapter 3…” He argues that such a consideration must be premised on the increase in the population and its influence on cultural material autonomy (devolution of powers and functions to provincial monarchy).

Recommendation

No recommendation was made in this respect.

H: SUBMISSION BY MR LESIBA JACOB MOLEKOA – LAND AND MINES IN LIMPOPO

Mr Molekoa submitted that the Constitution is responsible for the “mess” the poor community is in. He states that the country’s mining laws allow companies access for mining purposes without proper consultation and fair compensation to land owners. He cites an example of the poor community of Mhlotlo in the Limpopoprovince. He proposes changes to the Constitution to provide for “individual property rights”.

Recommendation

No recommendation was made in this respect.

I: SUBMISSIONS BY MR U B LEBBREINDT – UNEQUAL TREATMENT OF SOUTH AFRICANS

Mr Lebbreindt does not propose any amendment(s) to the Constitution but expresses unease about the unequal treatment of South Africans. He refers to the differentiation in vehicle licence fees in the different provinces. He refers to the Eastern Cape as an example where these fees are cheaper and hence “people including Telkom scheme to register their vehicles there”.

Recommendation

No recommendation was made in this respect.
J: SUBMISSION BY THE COMMUNITY LAW CENTRE – FUNCTIONS OF LOCAL GOVERNMENT

The Community Law Centre (“CLC”) submitted that there is a mismatch between the functions of local government as set out in the Schedules 4B and 5B and its developmental mandate. They submitted that the Constitution should be amended to align local government functional areas with its developmental mandate. CLC focused in this respect on four (4) functional areas specifically, housing, transport, land use planning and local economic development. CLC stated that possible ways of aligning the developmental mandate and functional areas are revisiting the Schedules and adjusting powers and functions through assignments.

Recommendation

No recommendation was made in this respect.