BLACK SASH SUBMISSION ON THE BILLS TO AMEND THE CONSTITUTION
INTRODUCTION
The Black Sash welcomes the opportunity to comment on the proposed amendments to the Constitution contained in the two bills set out hereunder.While we as an organisation are dedicated to jealously protecting the rights and interests contained in the constitution, it is acknowledged that the constitution was not drafted in stone; provisions were drafted for the amending thereof and clearly there will be instances where amendments must be made precisely to keep the provisions in accordance with the constitutional principles. We will however scrutinize these at every available opportunity to ensure continued compliance with these principles.
As a preliminary point, the Black Sash wishes to record that the level of public debate generated by some of the proposed amendments is heartening and must be encouraged. We are concerned however that despite the public process of consultation which is currently being undertaken, various statements have been issued by the Department of Justice that suggest that the input made in submissions will not influence the decision of the Department or Minister to implement the amendments. Such a position would be extremely arrogant and contrary to the process of consultation. We accordingly seek reassurance from the Minister that this indeed is not the case.
COMMENTS ON THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA AMENDMENT BILL, 2001
(The ‘First’ Amendment Bill)
AMENDMENT TO SECTION 93 - Deputy Ministers Currently the provisions of Section 93 allow the President to appoint Deputy Ministers from members of the national assembly in order to assist the cabinet ministers, and the President is also entitled to dismiss the Deputy Ministers in terms of the same section. The amendment seeks to enable the President to appoint up to two Deputy Ministers from outside the Assembly.
While it is acknowledged within the Black Sash that appointments in terms of the amendment may enable the President to avail her-or himself of expertise and skills in a particular field, it is of overwhelming concern to us that Deputy Ministers appointed in this manner will not be elected members of the national assembly. Such a provision will certainly erode the concept of democratic accountability, which is a cost that South Africa can not afford. We state below that our constitution cannot be amended to suit personal circumstances. The principle applies equally well to this amendment and the possible motivation for its introduction. We must not be allowed to establish as precedent that challenges presented by circumstances and policies of the day can be accommodated through changes to the constitution: a constitution cast in quicksand.
AMENDMENT TO SECTION 176 - Tenure of Constitutional Court Judges
In terms of the current provisions of Section 176, a constitutional court judge is appointed for a non-renewable term of twelve years, while the tenure of other judges is contained in an act of Parliament (subsections one and two respectively). Two intertwined issues of importance arise from these provisions; firstly that it was deemed necessary to entrench the term of the constitutional court judges within the constitution rather than to have same regulated by national legislation, and secondly, that this was a conscious decision to distinguish the determination of tenure of constitutional court judges from other judges. Subsection three ensures that the terms of remuneration and benefits of judges may not be reduced. (This last subsection is interesting; although the terms and benefits are to be decided on in national legislation, the constitution has an entrenched guarantee against political pressure being brought to bear on judges on economic grounds should a party with the majority in the National Assembly threaten to reduce remuneration and benefits of judges for political reasons).
The effect of the proposed amendment is to remove the current distinction in the determination of tenure of constitutional judges compared to all other judges by the deletion of the current first subsection of Section 176, and a slight amendment to the wording of the second subsection for it to read:
"Judges hold office until they are discharged from active service in terms of an Act of Parliament".
Accordingly, the amendment will mean that constitutional judges’ tenure will, as is the case with the other judges of the High Courts and the Supreme Court of Appeal, be decided by national legislation (currently contained in the JUDGES REMUNERATION AND CONDITIONS OF EMPLOYMENT ACT 88 of 1989). It is this proposed amendment that has recently split the South African legal sector firmly in two.
The Black Sash further must place on record our belief that it is to divorce the question of constitutional amendments with personalities, and hence any influence that may be brought to bear to approve the proposed amendments in order to accommodate the extended tenure of Justice Chaskalson must be resisted in these considerations, notwithstanding the wealth of his contribution to constitutional and broader issues in the country to date. To change a constitution that is the result of such intensive negotiation should not be done with every sway of circumstance or policy; there must be more persuasive reasons, and we do not find the reasons forwarded persuasive, as set out below.
The Memorandum on the Objects of the amendment issued by the Department of Justice sadly amounts to a mere restatement in plain English of the effect of the proposed changes and fails to give any insight into the objects of the amendments or to identify the intentions of those who proposed them.
Why the furore?
The constitution in South Africa is the highest law of the land, regulating and checking the powers of the executive and legislature as well as the judiciary, to ensure that the balances of the different arms of government are maintained. The interpretation and application of the constitution is the task of the courts; there is no appeal beyond the judgment of the constitutional court in this regard. The calibre and standing of the constitutional court judges must accordingly be an issue of great concern to all who acknowledge the power that is accorded to the judges who are the final arbiters in the interpretation and application of the constitution.
The proposed amendment embraces two issues, both of which have separate relevance and challenges; namely the length of tenure considered desirable for constitutional court judges, and secondly the issue of whether the tenure of constitutional court judges should be contained in national legislation, or whether this should continued to be enshrined in the constitution. Embracing both these issues lies the question whether constitutional court judges should be accorded different treatment to the other judges as "primus inter partes", or not.
One of the populist arguments for an extended tenure is that once a constitutional court judge retires, their opportunities for further employment will be limited. From the furore and some of the articulated debates there appears to be a popular concern that were these judges to enter any other employment, this may effect a retrogressive besmirching of their judgments delivered while still firmly enshrined on Olympus. This must be dismissed as immature reasoning. There is however a more concrete concern that a judge, anticipating the prospect of having to find employment on the expiry of his or her term, may be influenced in ruling in favour or against certain parties viewed as having influence over potential future employers, whether overtly or covertly. There also appears to be a coyness about retiring constitutional court judges returning to the bar to argue before their former colleagues, at least immediately after the expiry of their term.
These concerns are given greater prominence in the current debate given the relative youth of certain of the present incumbents to the constitutional court bench. However while these issues clearly need thrashing out, to avoid the necessary debate through extending the tenure of the judges seems to lack any vestige of principle.
Background
From the drafting history of both the interim and final constitutions, it appears as if the issue of the tenure of the constitutional court judges was initially not raised, although in the Twelfth Report of the Technical Committee for instance, it is recorded that issues relating to these judges’ status and conditions of service should be entrenched in the constitution to ensure their independence. This can be seen in the provision of subsection (3) of the final constitution. In terms of the interim constitution thereafter, the non-renewable term of constitutional court judges was set at seven years. In terms of the final constitution, this was extended to a set and non-renewable term of twelve years.
A comparison with many similar countries, gleaned from a disparate selection of legal systems, concludes that an increasing number of countries are adopting a set, usually non-renewable term of office, which is usually between nine and twelve years. The belief is clearly held in these jurisdictions, as was concluded by the final drafters of the constitution, that a period of twelve years is sufficient to ensure the development of precedent, of continuity, stability and coherence by the constitutional court bench. People who hold public office must be bound by the rule of law; to seek to extend or amend the rules when their implementation will cause personal hardship does not bode well for a country in a continent where tenure for life appears to be the desired norm rather than the exception. Should the tenure of the constitutional court judges be extended at this stage (already an extension beyond the term set in the interim constitution), we believe that their impartiality may be questioned should they have to rule on the constitutionality of extensions of other terms of office limited in the constitution.
The terms and conditions of remuneration and benefits of all other judges is determined in terms of national legislation, namely the JUDGES REMUNERATION AND CONDITIONS OF EMPLOYMENT ACT 88 of 1989. This act also determines the length of tenure of the other judges, which provides that these judges are employed until the age of 70, unless they would not have competed the minimum 15 years which entitles a judge to full pension and other benefits. Should they not qualify they are entitled to stay on for a further 5 years to assist them to qualify, whereafter they must resign. Should a judge however be appointed when she or he is forty years old, they will be able to sit for thirty years on the bench should they so wish and should they not have been removed from office ( the provisions relating to removal from office are contained in section 177 of the constitution and apply to all judges).
Reasons raised by many in favour of retaining a limited term of office for the constitutional court bench are persuasive. Judges to that office need to be constantly aware and in touch with the ordinary issues faced by the people of the country, and a regular flow of appointments helps to guarantee that this will be possible. Given that the constitutional court judges in practice all tend to hear each case ( a practice known as "en banc"), it is important that the views exchanged inter se receive updating from time to time, not of constitutional principles, but regarding the mores and policies and political issues that concern ordinary people in their everyday lives.
Another reason relating to the practice of sitting en banc is that should the judges sit for life, it is less likely that there will be space for the development of law beyond a position taken by the bench at a given time, which view is based on the difficulty with which judges depart from prior positions. This is not to encourage departure from the constitution but to allow for a maturing of jurisprudence over time where this is required.
Another persuasive reason is that there are and will be very fine minds in this country which should be welcomed to the constitutional court bench. We must not be shy in training and identifying such replacements; if the number of openings to this court were to be so limited we may indeed encourage such jurists away from our country, which would impoverish the level of legal debate and thinking.
Support for the principle that judges to the constitutional court should not have limited tenure vests firstly in the desire that all judges should be treated equally, and also in the fear of a lack of continuity at this early stage of the history of the court, and a concern regarding a possible erosion of the independence of the bench.
The view that all judges should be perceived to be equal and should consider themselves equal inter esse is widely held. From this springs the position that to have varied terms regulating their tenure is unnecessary divisive. Although our organisation itself contains divergent views on this issue, it is agreed that the point of departure must be that the constitution is the highest law of the land and the constitutional court is the highest forum to appeal the meaning and application of the law. The power that rests with the constitutional judges is accordingly far greater and far more overtly political in nature than in any other bench. We also believe that this is intentionally reflected in the provisions of section 174 of the constitution that sets out the procedures for the appointment of the various judges. In the appointment of constitutional court judges, the President of South Africa has far more discretion than for the appointment of other judges. For other judges of the President must appoint on the advice of the Judicial Services Commission (subsection 6), whereas the President appoints the constitutional court judges after consulting the President of the Constitutional court and the leaders of parties represented in the national assembly, from a list prepared for him or her by the Judicial Services Commission which gives the President a limited selection ( there are three extra nominations for the appointments available) and furthermore the President can return the list to the commission with the position unfilled for supplementing if he or she could not find an acceptable candidate in that list ( subsection 4). Clearly the method of appointment of the judges gives the executive greater discretion in constitutional court appointments; as there is already little parity in appointments, or in the ultimate effect of judgments, to argue for parity in tenure without acknowledging the differences we believe is myopic.
As acknowledged above, it is trite that issues regarding the future of judges whose terms at the constitutional court expire must receive attention. What Black Sash and many other people are suggesting is that there are other ways of accommodating the departees. One way that has been mooted is that the judges be retained on full pay for a period of two years subsequent to their departure from the bench, whereafter they be entitled to enter gainful employment in legal circles, whether at the Bar or other benches. There will have to be greater debate as the whether this two year period should also apply for lesser related areas of work, such as journalism, academia, the diplomatic corps etc.
These issues however should be capable of being resolved in national legislation, either to enable constitutional court judges to qualify for the same benefits as other judges after twelve rather than fifteen years (if they retire at seventy), or through alternative provisions to provide for a "restraint of trade" period for younger judges who wish to seek alternative employment after their term has expired. Such amendments should be subject to widespread consultation to obtain consensus on these issues, avoiding the necessity of amending the constitution, and hopefully avoiding a repetition of the personalization of the argument that has currently developed.
There is a valid concern that should the whole bench depart en masse, the continuity of jurisprudence and precedent will suffer. By the end of this year however, three judges should have been replaced, and there is still a relatively long period of the twelve year appointment to go ( 5 years). Over time, there will be a definite staggering of the terms of judges; again the issue is that we are uneasy at the prospect of amending the constitution to accommodate current problems. The constitution should not be amended to reflect and accommodate every obstacle of change of policy. However if in three years time it is clear that there may be a crisis of continuity, why not make the decision then rather than anticipating same now?
It is important to distinguish length of tenure from security of tenure. We believe that security of tenure is sufficiently guaranteed by the limited grounds for the removal of a judge contained in section 177 of the constitution.
We accordingly call for the current provision relating to tenure to be left intact. We also believe it imperative that the issue of tenure of judges of the constitutional court be enshrined in the constitution rather than national legislation. Given the importance of their contribution in ensuring the purest application of constitutional democracy, it is important that the procedures to ensure public comment and national approval for amendment of the constitution contained in section 74 thereof have to be followed to vary provisions relating to tenure, rather than the standard provisions for amending the provisions of national legislation. Judging from the level of debate currently caused by the proposed amendments, there are many conflicting views to be aired and argued. As mentioned above, despite the provisions of Section 74, the Minister of Justice has already revealed his opinion on the merit of public debate by announcing on Friday 24th August 2001, a week before the period for public comment closed, that he intends to forge ahead with this amendment, notwithstanding any opposition. The Black Sash believes that such an attitude clearly articulates the very reasons we believe the protection of the constitution is necessary. The tenure as currently contained must remain, the other issues can be decided in national legislation. CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA SECOND AMENDMENT BILL, 2001
(The ‘Second’ Amendment Bill)
AMENDMENT TO SECTIONS 73 and 77 - National Legislative process
Section 73 regulates the point of introduction of bills into the legislative process. Currently subsection 2 states that
"(2) Only a Cabinet member or a Deputy Minister, or a member or committee of the national Assembly, may introduce a Bill in the Assembly; but only the cabinet member responsible for national financial matters may introduce a money Bill in the Assembly."
The amendment to section 73 seeks to extend the reservation of the right to introduce bills of the Minister of Finance (the "cabinet member responsible for national financial matters") to
"(a) a money bill; or
(b) a bill which provides for legislation envisaged in Chapter 13 except when that legislation -
(I) relates to the financial administration of Parliament or the provincial legislatures;
(ii)determines a matter mentioned in section 219; or
(iii) regulates rates on property in terms of section 229(2)(b)."
Furthermore, in terms of the proposed change to subsection (3), none of these bills as per the above amendment may be introduced in the National Council of Provinces.
In addition to this, the definition of "money Bill" contained in section 77 has also been amended. One of the amendments seeks to effect that bills that will decrease or abolish any national taxes, levies, duties or surcharges can only be introduced by the Minister of Finance. Given that this subsection refers to taxes of a national nature, this is understandable. The amendment that follows thereupon seeks to include under the definition of a money bill, any bill that has the effect of
"(d)(authorises) direct charges against the National Revenue Fund, except a Bill envisaged in Section 214 authorising direct charges".
While we appreciate that issues pertaining to the budget must lie within the domain and knowledge of the Minister of Finance, our concern is that a liberal interpretation of the amendment may veto the ability of other Ministers to discharge their obligations and responsibilities. In terms of Section 213(2)(a) and (b), money can only be withdrawn from the national revenue fund in terms of an appropriation by an act of parliament, or as a direct charge against the national revenue fund when it is provided for in the constitution or an act of parliament. The proposed amendment would then render any such bill a money bill and thus only capable of being introduced by the Minister of Finance to the national assembly.
The right to social security is provided for in the constitution. National legislation however is required to introduce and administer the appropriate social security including social assistance grants. These grants must be funded from the national revenue fund. Given this, our concern is that the effect of the above amendment may be that the ability of the Minister of Social Development to introduce a bill relating to social grants may be subject to the veto of the Minister of Finance, and if the latter Minister were to refuse to introduce such a bill, the Minister of Social Development would be unable to pass the legislation required to discharge her or his responsibilities.
An amendment that may have such an effect cannot be passed in this country. It is clear from the preceding year that the future struggles faced by South Africans in the attainment of their constitutional and human rights will be primarily socio-economic in nature, battles which seek to enforce peoples’ rights guaranteed in the Constitution against a state whose interests in the pursuit of their macro-economic policies are not clearly subjugated to the challenge of delivery of socio-economic rights guaranteed in the Constitution. The composite effect of the amendments highlighted above will be to prevent any member or committee of the National Assembly from introducing a bill in the realisation of such rights where the measures for such realisation will have budgetary implications. If the Minister of Finance, acting in terms of the veto that the amendment seeks to deliver into his or her hands, refuses to introduce such a Bill, there will not even be space to debate the appropriateness of the Bill by the legislature, let alone civil society. Budgetary considerations will always determine the period for the implementation of a bill where such implications exist, but given the very apparent tensions between the chosen economic policy of the current government and its constitutional obligations, the Black Sash places on record that the effect of such an amendment on the realisation of socio-economic rights in South Africa could be profound, and we call on both the Minister and the Portfolio Committee to reject this encroachment of rights.
AMENDMENT TO SECTION 100 - National Supervision of Provincial Administration
The proposed amendment seeks to extend the application of the provisions of Section 100 to include not only provincial governments but also local government at municipal level, and it also extends the occasions when these powers may be evoked from executive failings to all failings by the removal of the "executive" qualification.
Concern has been raised that this is an example of creeping centralism by the national government to the detriment of the other two spheres of government and the division entrenched in the constitution. However these powers of control can only lawfully be used should either of the other two spheres fail to act in accordance with their constitutional and legal obligations. It would also appear logical and consistent to extend to the national government the same powers over a defaulting local governmental body as it has over a provincial body. The current amendment would also seem to fit with the provisions of section 155(7) which bestows
"legislative and executive authority to see to the effective performance by municipalities of their functions in respect of matters listed in Schedules 4 and 5, by regulating the exercise by municipalities of their executive authority referred to in section 156(1)"
on national and (subject to section 44), provincial governments.
While these provisions contain a tool that can be used effectively against recalcitrant provincial and local governments, we have two questions: firstly, what is the likelihood that these provisions will be used, given the apparent resistance of the national executive to utilise the provisions to date in the face of widespread failures by various provincial governments to act in accordance with the provisions of the constitution. The second question is whether, given the drastic powers that this section makes available to the national government, are there sufficient safeguards to prevent these provisions from being used by a party that has the majority in the national government to seize control of provincial or local governments that are controlled by opposition parties? We do not believe so, and thus we call for a far stricter definition of the powers and their limits.
Currently, the National Council of Provinces (NCOP) must ratify an intervention in a province in terms of section 100, within 30 days of it first sitting after the intervention occurred. Should it fail to do so then the intervention is set aside. This would seem to be a veto that the NCOP has, a check against unlawful or incorrect resort to this section. In the proposed bill however, we note with concern that this protection appears to be weakened. The only way that the intervention can end in terms of the proposed section 100(2) is if the NCOP by resolution requests the national executive to end it, thus removing the previous default provision that provided for an automatic cancellation of the intervention should the NCOP not have approved same within 30 days. The default has thus been reversed. In addition, the obligations of the NCOP to review the intervention has been weakened from must to may. Since the resolution of the NCOP is the only way that has been provided for setting aside an intervention, it is not reassuring that their obligation to regular review has been weakened. Is there a need for local government approval for the continuation of an intervention that occurs at a local level? We suggest that the Department consider this earnestly prior to the amendment of this provision. Relating to the current amendment however, we call for the following alterations/ additions to be made:
S100 (2)(c) the Council must review the intervention regularly and submit reports to the national executive on a bimonthly basis, together with recommendations for the continuation or not of the intervention.
The current guidelines are not sufficiently detailed to provide comprehensive guidance for an intervention. Given the importance of these powers, we believe that it is essential that these guidelines be contained in national legislation that is subject to appropriate public scrutiny in its passage form bill to act, and accordingly we call for the proposed subsection three to reflect this as follows:
(3) National legislation -
(a) must be enacted to regulate the process established by this section; and
(b) must co-ordinate the process established by this section with the process established by section 139.
It is also imperative that "national norms and standards" contained in section 100(1) be defined and set out in public documentation after broad consultation with all interested sectors.
AMENDMENT TO SECTION 139
The above issues and alterations to the amendments as set out for Section 100 must be read to apply equally to the proposed amendments to section 139.
We do not see the relevance in the proposed amendment under the First Bill to Section 155, in the light of the proposed amendments to Section 100. For reasons of logic and consistency, the national legislation pertaining to section 100 should also contain the necessary provisions for the proposed amendment to section 155, in which case we do not see the necessity for the introduction of the proposed Section 155(9).
AMENDMENT TO SECTION 163 This proposal is to bring the section into line with the proposed amendment to section 221. Please see our comments on this section immediately hereafter.
AMENDMENT TO SECTION 221 We express grave concern regarding the implications of this amendment, and are strenuously opposed to it for the reasons set out hereunder.
The Financial and Fiscal Commission (FFC) is a body set up in terms of the constitution which has the oversight of the equitable share and allocation of revenue between the three spheres of government, which is a highly significant role to ensure that provincial and local governments have the necessary division of the national revenue to function correctly, to control the amount of provincial revenue that is appropriated, as well as to encourage provincial revenue raising
.
Currently section 221 provides that the FFC must have 22 members, appointed in accordance with the relevant provisions of the section. Currently the President appoints a representative from each province, which representative is nominated by the province. In terms of the proposed amendment, the number of provincial representatives is reduced from 9 ( one per province) to two, and in addition, the President appoints these members after consultation with the Premiers of the provinces. This of course gives the President far greater discretion in the matter of appointments. We would submit that the likelihood of any member of an opposition party which may be in power in a province being appointed to the FFC is very slight. We submit that this is a highly retrogressive step and out of line with the principles set out in the Founding Provisions of the Constitution and further believe that it erodes the principal of balanced government between the three spheres of government.
For the same reasons as those set out above we reject the proposed amendments of section 221(1)(c) in terms of which the local government members currently appointed on the nomination of organized local government will now be appointed after consultation with the same bodies. The selection powers and discretion of the executive is thus supreme in the appointments of all 8 persons to the Council.
There is also insufficient motivation for the needs of reducing the membership of the council from 22 to 8. A popular view is that the FFC is experiencing problems with its daily functioning subsequent to the original amendment that reduced the positions of the Chair and the Deputy Chair from full-to part-time positions. If this body is not functioning properly, we submit that a Commission of Enquiry should be constituted to examine why. We dismiss the idea that a reduction in the representation and a broadening of the discretion of the executive in appointments will serve as a panacea, and we call on the Department to reject this amendment; do not agree to the use of the constitution to address problems in the commission at the cost of challenging the role of the commission.
The Black Sash believes that above all it is vital to maintain the integrity of the constitution and it is as a result of this position that we scrutinse any proposed amendments. We do however acknowledge that the drafting of the constitution was a function of the multi-party negotiations at Kempton Park and there will be instances where compromise does not make good law, let alone a good constitution.
The views of the Black Sash on the amendments that we oppose have been set out at length above. We request that the Committee use our objections to interrogate the amendments in a robust manner.