COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES BILL [B62-2001]

(STAGE 2)

2001-10-24

COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES BILL

[B62-2001]

PROPOSED AMENDMENTS

LONG TITLE

1. That the Long Title be rejected.

NEW LONG TITLE

1. That the following be a new Long Title:

In giving effect to the provisions of the Constitution –

to provide for the composition of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities;

to provide for additional functions of the Commission;

to provide for the convening of a national consultative conference;

to provide for the establishment and recognition of cultural and other councils; and

to provide for matters connected therewith.

PREAMBLE

1. That the Preamble be rejected.

NEW PREAMBLE

1. That the following be a new Preamble:

PREAMBLE

WHEREAS the South African nation consists of a diversity of cultural, religious and linguistic communities;

AND WHEREAS past policies have bequeathed a legacy of division and inequality between these communities;

AND WHEREAS the Constitution seeks to—

heal these divisions of the past;

establish a non-racial and non-sexist society based on democratic values, social justice and fundamental human rights;

promote equality;

achieve unity in our diversity; and

promote respect for, and the protection of, the rights of cultural, religious and linguistic communities;

AND WHEREAS the Constitution has created a range of institutional mechanisms to secure the stability of the democratic order, including a Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities;

AND WHEREAS the Commission in fulfilling its Constitutional task should play a key role in assisting with the building of a truly united South African nation bound by a common loyalty to our country and all our people;

HEADING

1. On page 3, in line 10, to omit "PART 2: STATUS AND OBJECTS OF COMMISSION", and to substitute:

PART 2: STATUS, OBJECTS AND FUNCTIONS OF COMMISSION

CLAUSE 3

1. That the Clause be rejected.

NEW CLAUSE

1. That the following be a new Clause to follow Clause 2:

Status of Commission

3. The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities referred to in section 181(1)(c) of the Constitution—

(a) is independent;

(b) is a juristic person; and

CLAUSE 4

1. That the Clause be rejected.

NEW CLAUSE

1. That the following be a new Clause to follow Clause 3:

Objects of Commission

4. The objects of the Commission are—

(a) to promote respect for and further the protection of the rights of cultural, religious and linguistic communities;

(b) to promote and develop peace, friendship, humanity, tolerance and national unity among and within cultural, religious and linguistic communities, on the basis of equality, non-discrimination and free association;

(d) to assist with the development of historically diminished cultural, religious and linguistic rights of communities; and

(d) to recommend the establishment or recognition of cultural or other councils for a community or communities in South Africa in accordance with section 36 or 37.

NEW CLAUSES

1. That the following be new Clauses to follow Clause 4:

Powers of Commission

5. (1) The Commission may do all that is necessary or expedient to achieve its objects referred to in section 4, including—

(a) conducting information and education programmes to promote public understanding of the objects, role and activities of the Commission;

(b) conducting programmes to promote respect for and further the protection of the rights of cultural, religious and linguistic communities;

(c) assisting in the development of strategies that facilitate the full and active participation of cultural, religious and linguistic communities in nation-building in South Africa;

(d) promoting awareness among the youth of the Republic for the rights of cultural, religious and linguistic communities;

(e) monitoring, investigating and researching, and educating, lobbying, advising and reporting on, any issue concerning the rights of cultural, religious and linguistic communities;

(f) facilitating the resolution of conflicts or friction between and within cultural, religious and linguistic communities or between any such community and an organ of state where the cultural, religious or linguistic rights of a community are affected;

(g) receiving and dealing with complaints or requests related to the rights of cultural, religious and linguistic communities;

(h) making recommendations to the appropriate organ of state regarding legislation that impacts, or may impact, on the rights of cultural, religious and linguistic communities as set out in section 31 of the Constitution;

(i) establishing and maintaining databases of cultural, religious and linguistic community organisations and institutions and experts on these communities; and

(j) bringing any relevant matter to the attention of the appropriate authority or organ of state, making recommendations to such authority or organ of state on the handling of such a matter, and requiring a response from such authority or organ of state.

(2) The Commission may, in order to perform its functions properly—

(a) determine its own staff establishment and the terms and conditions of employment for its staff within a policy framework determined by the Minister;

(b) appoint employees and seconded personnel to posts on its staff establishment;

(c) obtain the services of any person by agreement or appropriate arrangement, including the services of any national or provincial department or functionary or any institution, to perform any specific task or function;

(d) acquire or dispose of any right in or to property, but ownership in immovable property may be acquired or disposed of only with the consent of the Minister;

(e) open and operate its own bank accounts, subject to the Public Finance Management Act, 1999 (Act No. 1 of 1999);

(f) insure itself against any loss, damage, risk or liability;

(g) perform legal acts, or institute or defend any legal action in its own name;

(h) engage in any lawful activity, whether alone or together with any other organisation in the Republic or elsewhere, aimed at promoting the objects of the Commission;

(i) co-operate, liaise and interact with foreign institutions performing similar functions to those of the Commission; and

(j) do anything that is incidental to the performance of its functions.

Assistance from other Constitutional institutions and organs of state

6. (1) The Commission may—

(a) make appropriate arrangements with another Constitutional institution or an organ of state to assist the Commission in the performance of any of its functions in so far as such institution or organ has the power to assist the Commission; and

(b) delegate to a Constitutional institution or organ of state with which it has made arrangements any of its powers that may be necessary for the rendering of the agreed assistance.

(2) The Commission must co-operate with other Constitutional institutions and organs of state where the functions of the Commission overlap with those of such other Constitutional institutions or organs of state in order to foster common policies and practices.

(3) The Commission may in terms of section 185(3) of the Constitution report any matter that falls within its functions and powers to the South African Human Rights Commission for investigation, whether or not the Commission has made arrangements with the South African Human Rights Commission.

Investigations by Commission or investigating committee

7. (1) The Commission may conduct an investigation in terms of section 5(1)(d) itself or may designate one or more Commission members or other persons as an investigating committee to conduct the investigation on its behalf.

(2) For purposes of an investigation, the Commission or an investigating committee may—

(a) by notice in writing summon a person to appear before the Commission or the committee, as the case may be—

(i) to give evidence; or

(ii) to produce a document available to that person and specified in the summons;

(b) call any person present at a meeting, whether summoned or not—

(i) to give evidence before the Commission or committee, as the case may be; or

(ii) to produce a document in that person's custody at the meeting;

(d) question any person contemplated in paragraph (c) or have such a person questioned by a person designated by the Commission or committee, as the case may be; and

(e) retain for a reasonable period a document produced in terms of paragraph (b)(ii).

(3) If an investigating committee has been appointed to conduct an investigation on behalf of the Commission, the committee must report and make recommendations to the Commission in respect of the investigation at the completion of the investigation.

Reporting by Commission

8. The Commission must report annually to the National Assembly on its activities and the performance of its functions.

CLAUSE 5

1. On page 3, in line 35, to omit "section 8", and to substitute "section 12".

2. On page 3, in line 37, to omit "section 7", and to substitute "section 11".

3. On page 3, from line 44, to omit subsection (3), and to substitute:

(3) The Commission must be composed in such a way that it—

(a) is at least broadly representative of the main cultural, religious and linguistic communities in South Africa;

broadly reflects the gender composition of South Africa; and

collectively possesses sufficient knowledge and experience concerning issues relevant to the promotion and protection of the rights of cultural, religious and linguistic communities.

CLAUSE 6

1. On page 4, in line 5, to omit "section 4(1)", and to substitute "section 4".

2. On page 4, from line 6, to omit subsection (2), and to substitute:

(2) The following persons are disqualified from becoming or remaining a member of the Commission:

(a) An unrehabilitated insolvent;

(b) a person declared to be of unsound mind by a court of the Republic;

(c) a person who is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, provided that -

no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired; and

(ii) the disqualification under this paragraph ends five years after the sentence has been completed;

(d) a person who has been removed from office in terms of section 17; or

(e) a person who has been convicted of a crime or an offence in respect of which a court has determined that hatred based on race, ethnicity, gender or religion played a role.

CLAUSE 7

1. That the Clause be rejected.

NEW CLAUSE

1. That the following be a new Clause to follow Clause 10:

Procedure for appointment of members

11. (1) Whenever it is necessary to appoint the members of the Commission contemplated in section 9(1)(b), the Minister must—

(a) through advertisements in the media, nationally and in each of the provinces, invite organisations within the cultural, religious and linguistic communities of South Africa to nominate persons complying with section 10 for appointment to the Commission;

(b) take further steps to invite organisations and individuals within the cultural, religious and linguistic communities of South Africa to nominate persons complying with section 10 for appointment to the Commission if the initial nominations as a result of advertisements referred to in paragraph (a) would not meet the requirements of section 9(3);

(c) compile a list of the names of persons nominated in respect of each of the various cultural, religious and linguistic communities, setting out the prescribed particulars of each individual nominee; and

(d) appoint a selection panel consisting of persons who will command public respect for their fair-mindedness, wisdom and understanding of issues concerning South African cultural, religious and linguistic communities.

(2) Any nomination made pursuant to an advertisement in terms of subsection (1)(a) or an invitation in terms of subsection (1)(b) must be supported by—

(a) the personal details of the nominee;

(b) particulars of the nominee's involvement in cultural, religious and linguistic affairs, including a list of the cultural, religious and linguistic organisations of which that nominee is a member, an office-bearer or in which that nominee is an active participant;

(c) particulars of the nominee’s knowledge and experience concerning issues relevant to the promotion and protection of the rights of cultural, religious and linguistic communities; and

(d) any other information that may be prescribed.

(3) The selection panel must—

(a) select persons who qualify to be members of the Commission and who would be most suited to serve on the Commission;

(b) select persons whose appointment would meet the requirements of section 9(3);

(c) select from the list compiled in terms of subsection (1)(c) at least one and a half times the number of members to be appointed as a result of –

a new term of the Commission;

an increase in the number of members contemplated in section 9(1)(b); or

a vacancy; and

(d) submit the names of the selected persons to the President together with reasons why they were selected.

(4) The President must –

(a) appoint the members of the Commission from the names of the selected persons submitted in terms of subsection (3)(d); and

(b) comply with section 9(3) when making the appointments.

CLAUSE 8

1. On page 4, in line 48, to omit "section 6", and to substitute "section 10".

2. On page 4, from line 53, to omit subsection (4).

CLAUSE 9

1. On page 5, in line 6, to omit "section 5(1)(b)", and to substitute "section 9(1)(b)".

CLAUSE 10

1. On page 5, from line 14, to omit subsection (2), and to substitute:

(2) The members of the Commission is appointed in a part-time capacity, but the Chairperson, Deputy Chairperson and not more than one/three other members may be appointed in a full-time capacity.

CLAUSE 12

1. On page 5, in line 39, to omit "section 6", and to substitute "section 10".

2. On page 5, in line 41, to omit "section 13", and to substitute "section 17".

3. On page 5, after line 43, to add the following subsection:

(3) A member is regarded as having resigned if that member –

(a) accepts nomination for the National Assembly, the National Council of Provinces, a provincial legislature or a municipal council;

is appointed as an office bearer of a political party; or

is an office bearer of a political party, a member of the National Assembly, a permanent delegate to the National Council of Provinces, a member of a provincial legislature or a member of a municipal council and fails to resign from such office within 30 days of having been appointed as a member of the Commission.

CLAUSE 14

1. On page 6, in line 8, to omit "section 8", and to substitute "section 12".

2. On page 6, in line 9, to omit "section 5(1)(b)", and to substitute "section 9(1)(b)".

3. On page 6, in line 10, to omit "section 7", and to substitute "section 11".

CLAUSE 15

1. On page 6, from line 15, to omit subsection (1), and to substitute:

(1) The Chairperson of the Commission decides when and where the Commission meets, but must convene a meeting within 30 days after the receipt of a request supported by a majority of the members to convene a meeting of the Commission.

CLAUSE 17

1. That the Clause be rejected.

NEW CLAUSE

1. That the following be a new Clause to follow Clause 20:

Decisions

21. (a) The Commission must take decisions in a consensus-seeking manner that gives effect to the principle of unity in diversity as reflected in the Constitution.

(b) If the Commission fails to reach consensus on a question before the Commission, a decision on the question can only validly be taken by a supporting vote of at least the majority of the total number of the members of the Commission.

CLAUSE 18

1. On page 6, from line 31, to omit paragraph (a), and to substitute:

(a) establish one or more committees consisting of members only or members and staff or other persons, to assist the Commission in the performance of its functions

CLAUSE 20

1. That the Clause be rejected.

PART 5

1. That this part be rejected.

CLAUSE 40

1. On page 11, in line 33, to omit "section 23(2)(a)", and to substitute "section 7(2)(a)".

2. On page 11, in line 37, to omit "section 23(2)(b)", and to substitute "section 7(2)(b)".