ATC110318: Report on 2010 public submissions made on the review of the Constitution

Constitutional Review Committee

THIS REPORT REPLACES THE REPORT OF THE CONSTITUTIONAL REVIEW COMMITTEE PUBLISHED IN THE ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS OF FRIDAY, 18 MARCH 2011, P 869

 

 

1. Report of the Constitutional Review Committee on 2010 Public Submissions, dated 18 March 2011

 

The Constitutional Review Committee, having considered the 2010 public submissions made on the review of the Constitution, reports as follows:

 

1.         Introduction

 

            In terms of section 45 of the Constitution, Parliament has to establish a joint committee to review the Constitution at least annually.

 

In giving effect to this provision, the Constitutional Review Committee placed advertisements in the media on 17, 18 and 19 July 2009 inviting public submissions regarding changes to the Constitution.  In all, 15 submissions were received.

 

The Committee requested the Parliamentary Legal Services office to consider each of the submissions in the light of current jurisprudence.

 

Hereunder are brief summaries of the submissions from the public, as well as the Committee’s views and its recommendations. 

 

2.                   Summaries of public submissions

 

Submission by Bathlakoane ba Manzimnyama: Amendment of section 25  

 

The submitters propose that section 25 of the Constitution in its current form should be repealed and replaced with a provision that will assist the Department of Rural Development and Land Reform to speed up the process of land reform in South Africa.  Bathlakoane submits that government should be given more powers to expropriate land from the minorities.  The willing-buyer, willing-seller approach, as contained in the Constitution, is unaffordable for government.  The Bathlakoane’s submission calls for the review of the policy relating to the expropriation of land.

 

The Committee, in its deliberations on the submission, felt that, in the light of the continual appearance of this submission, it would have to pay more attention to it.   Further it felt that it would have to solicit an expert opinion and consider the possibility of conducting public hearings on this provision.  The Committee is also of the view that it would have to engage the Portfolio Committee on Rural Development and Land Reform and the relevant Ministry on this matter.

 

Conclusion

 

The Committee has recommended that this matter be raised with the relevant Parliamentary Committee and/or the Director-General of the Department of Rural Development and Land Reform - the submitter to be advised as such.

 

Submission by Dr Ramola Naidoo: Amendment of section 92 (2), Chapter 9, section 196 and section 216 

 

The submitter made proposals for amendment of section 92 (2), certain sections within Chapter 9 and section 196 of the Constitution.

 

Amendment on section 92 (2)

 

Dr Naidoo proposes that section 92 (2) of the Constitution should be amended because it implies that the Cabinet is accountable only to Parliament and not to the President.  The Committee, having deliberated on this issue, was of the opinion that the section, as it stands, does not purport that Members of the Cabinet are accountable only to Parliament and not to the President.    The Committee considered the provision in section 85 (1) of the Constitution, which provides that the executive authority of the Republic is vested in the President; and section 83 (1) of the Constitution, which amplifies this provision by providing that the President is the Head of State and Head of the national executive.  In addition, section 91 (1) of the Constitution provides that the President, the Deputy President and Ministers comprise the Cabinet, with the President holding the position of head of the Cabinet.  Therefore, even though the Deputy President and Ministers are responsible for the powers and functions assigned to them by the President, the fact that the President is the “head” of the Cabinet intrinsically imparts a “master and servant” relationship, i.e. the Members of the Cabinet being subordinate to the Head of the Cabinet.  In this instance, the Members of the Cabinet are subordinate to the President.  This is further implied by the fact that the President has the constitutional power to appoint and dismiss Members of the Cabinet.  This “master and servant” relationship is further enhanced by the fact that the parties have entered into performance agreements.  In light of the above, the Committee is of the opinion that members of the Cabinet are therefore responsible and accountable to the President for powers and functions he assigns to them.  

 

Conclusion

 

The Committee is of the opinion that the submission does not warrant a Constitutional amendment.

 

Amendment of Chapter 9

 

The submitter proposes that:

 

(1)                 the Commission for Gender Equality be abolished and that its functions be completely absorbed by the Ministry for Women, Children and Persons with Disabilities;

(2)                 the South African Human Rights Commission (SAHRC) and the Commissions for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL) be merged; and

(3)                 the merged structure created in terms of (2) above incorporates the functions of the Pan South African Language Board as well.

 

The Committee noted that the proposals noted in (2) and (3) incorporates what is set up on pages 37 to 40 of the Report of the Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions (the Review Report).  The Ad Hoc Committee held an opinion that a single human rights body could be the answer to strengthening human rights and also allowing for members of the public to access one body in respect of human rights.  It expressed certain benefits that it thought were cogent factors for the establishment of a single human rights body.  However, the Ad Hoc Committee noted that the process of amalgamation would neither be easy nor speedy.  Apart from the National Youth Commission, these bodies were established by the Constitution and amalgamation thus would require significant constitutional amendment.  In addition, for such an amendment to be effected, Parliament and the executive should give due consideration to the matter.  It has thus become apparent that the matter of amalgamation still has not received the relevant impetus from both the executive and Parliament to allow for the processing of the recommendation. 

 

Conclusion

 

The Committee concluded that it would study the recommendations of the Ad Hoc Committee before taking a position on the proposal.  The submitter would be advised on the outcome as soon as a final decision is taken on the matter.

 

Amendment of section 196

 

Dr Naidoo proposes that the Public Service Commission (PSC) should be abolished and that its functions be incorporated into the Human Science Research Council (HSRC).  Furthermore, the function of the PSC contemplated in section 196 (4) (f) (ii) of the Constitution should be transferred to the Commission for Conciliation, Mediation & Arbitration (CCMA).  He also proposes that section 196 (4) (f) (I, iii, iv) and 196 (5) (g) of the Constitution should be transferred to the Minister in the Presidency, who oversees performance, monitoring and evaluation. 

 

The Committee is of the opinion that the PSC, as stipulated in section 196 (5) of the Constitution, is accountable to the National Assembly and performs an oversight over the Public Service.  Its incorporation into the Presidency would mean that its independence and impartiality would be lost, as its function would be carried by the executive.  In addition, the CCMA does not enjoy jurisdiction over public service disputes.  The General Bargaining Council (GBC) was established to deal with the public service disputes.  . 

 

Conclusion

 

The Committee is of the opinion that the suggestion by the submitter is a policy matter and does not warrant any review of the Constitution.

 

Amendment of section 216  

 

The submitter proposes an amendment to section 216 of the Constitution which deals with Treasury control. The proposal is for the incorporation of the word “sustainable” into the text of section 216 of the Constitution.  The submitter is concerned that there are not sufficient checks in place to assess value for money in respect of some of the expenditure. He suggests a thorough review of management level posts by Treasury to ensure that there is a need for these high-ranking posts. 

 

The Committee deliberated on this issue and was of the view that it was not in support of the proposal by Dr Naidoo, as any government, when budgeting for increases, considers sustainability.  Therefore, there would be no need for the word “sustainability” to be incorporated into the Constitution.

 

Conclusion

 

The Committee decided not to support the proposed amendment.

 

Submission by Mr Miya: Amendment of sections 165 (3), 182 (3) and 196 (4)

 

Amendment of sections 165 (3), 182 (3)

 

Mr Miya proposes amendments to the above-mentioned sections of the Constitution which deals with the judicial authority, functions of the Public Protector and the Public Service Commission, respectively, as follows:

 

The submitter argues that the powers of the Public Protector should be extended to include powers to investigate court decisions.  The Committee is of the opinion that an extension of the powers of the Public Protector to investigate court decisions would amount to interference with the independence of the judiciary and thus offend the principle of separation of powers and that the appeal and review of court decisions still remain effective remedies to litigants not satisfied with court decisions.  Therefore, it would not be desirable to amend the Constitution to extend the powers of the Public Protector to investigate court decisions. The Committee deliberated on this issue and disagreed with the submitter’s interpretation of section 182 (3) of the Constitution.  It further felt that section 182 (3) had no negative effect on the Public Protector’s performance of functions in terms of both section 182 of the Constitution and the Public Protectors Act, 1994 (Act No. 23 of 1994).  In addition the Committee feels that there are mechanisms in place to deal with disputes against the judiciary

 

Conclusion

 

The Committee concluded not to support the proposal by the submitter.

 

Amendment on section 196, (4)

 

The submitter further proposed an amendment to section 196, (4) of the Constitution to extend the powers of the Public Service Commission to cover Local Government.  The Legal Adviser advised that, in terms of section 2 of the Public Service Commission Act, the Commission’s jurisdiction is limited to National and Provincial administrations.  By implication, the Commission’s jurisdiction does not cover municipalities at local government level.  There were no legal impediments in extending the jurisdiction of the Commission to include local government.  .

 

Conclusion

 

The Committee decided not to support the proposal – the submitter would be informed of the Committee’s decision on the submission.

 

.           Submission by the Human Rights Office, Projects Abroad on section 27

 

The submitters were of the view that section 27 of the Constitution, which provides for socio-economic rights, was inadequate.  The petitioners were of the view that, unlike civil and political rights, socio-economic rights were vague and, as such, difficult to enforce.  The opinion by the Legal Adviser was that the submission did not propose any amendment to the Constitution. In addition it did not fall within the parameters of the brief.

 

Conclusion

 

The Committee deliberated on the submission and decided that it should not support the proposal, as the matter did not fall within the parameters of the brief.  It was decided that the submitter should be informed about the Committee’s decision on the submission.

 

Submission by Mr Motsoeneng: Amendment of section 34

 

The submission proposes an amendment of section 34 of the Constitution which deals with access to courts, so as to change the current judicial system.  The submitter is of the view that the Magistrate’s Courts Act, 1944, and the Supreme Court Act, 1959, were too technical for someone who is not trained in law. The submitter feels that this deprives people access to justice.  He suggests a judicial system in which the Community Court will replace the Magistrates’ Courts, and the High Courts are replaced with Human Rights Courts. 

 

The Committee feels that there are a number of specialized courts to deal with all types of disputes.  Therefore, it would not be necessary to amend the Constitution.  Furthermore, accepting the proposal for an amendment to section 34 of the Constitution would require amending Chapter 8 of the Constitution and that new legislation be enacted to give effect to the new provisions of the Constitution. 

 

Conclusion

 

The Committee decided not to support the submission.

 

Submission by National House of Traditional Leaders on sections 211 and 212

 

The submission proposes an amendment of sections 211 and 212 of the Constitution.  Adv. Adhikarie was of the opinion that the submission sought to ensure a perpetual guarantee of the existence of the National House of Traditional Leaders (NHTL).  Furthermore, there is a proposal for the provisions of the Traditional Leadership and Governance Framework Act, 2007 which relate to the role and functions of the Traditional Leaders to be incorporated in the Constitution.

 

 It was suggested that the Committee should wait for the outstanding submission from the National House of Traditional Leaders on the inputs it was collating from its constituents on Chapter 12 of the Constitution.

 

The submission is still under consideration.

 

Submission by Traders Action Group

 

The submission contains issues of concern raised by a group of informal traders in Mitchells Plein around a restructuring process that took place at the Mitchells Plein Town Shopping Centre in the Western Cape.  The submitters suggest the establishment of a Commission of Enquiry that would look into the secret dealings surrounding the development of Mitchells Plein Central Business District, as well as the involvement of the Chairperson of the Mitchells Plein United Hawkers Forum.  In addition, the submitters suggest that government should consider introducing legislation that would curb the influx of cheap foreign products, which they claim have contributed negatively to the future economic stability of traders and shop-owners in South Africa.  The Committee, having deliberated on the submission, feels that the submission does not contain a request that relates to an amendment or a review of the Constitution.  The view expressed was that the matter should be directed to the relevant local authority, as it falls within that ambit.

 

Conclusion

 

The Committee decided that the submitter should be advised to refer the matter to the City of Cape Town.

 

 

Index of submissions received:

 

 

Number

 

 

Submitter/s

2

 

Bathlakoane ba Manzimnyama

3

 

Dr Ramola Naidoo

4

 

Mr Miya

5

 

Human Rights Office, Projects Abroad

6

 

Mr Motsoeneng

7

 

National House of Traditional Leaders

8

 

Traders Action Group

 

Documents

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