TAGGING OF CITATION OF CONSTITUTIONAL LAWS BILL [B5

TAGGING OF CITATION OF CONSTITUTIONAL LAWS BILL [B5—2005]

1. During the meeting of the Portfolio Committee on Justice and Constitutional Development that was held on 23 February 2005, the Committee was briefed on the provisions of the Citation of Constitutional Laws Bill [B5-2005] ("the Bill"). At the said meeting the questions were raised—

(a) whether it is constitutionally in order to deal with the Bill in the manner provided for by section 75 of the Constitution; and

(b) whether the Bill should not be dealt with in terms of section 74 of the Constitution.

The question was apparently raised since the Bill seeks to prescribe the manner of referring to the Constitution by providing that no Act number must be associated with the Constitution (clause 1).It also seeks to amend the short titles of (existing) laws amending the Constitution (clause 2) and to provide for the manner of referring to (future) laws amending the Constitution (clause 3).The Department of Justice and Constitutional Development and the State Law Advisers have been requested to advise the Committee on the matter.

2.1 As a background, reference should first be made to section 74 of the Constitution which sets out the procedure applicable to Bills amending the Constitution. Summarised, that section—

(a) sets out the various majorities required for the amendment of different provisions of the Constitution (section 74(1 ) - (3));

(b) states that a Bill amending the Constitution may not contain provisions other than constitutional amendments (section 74(4));

(c) prescribes the manner of publishing proposed amendments to the Constitution in the Government Gazette for public comment and to whom those particulars must be submitted for their views or public debate (section 74(5)):

(d) requires the person or committee introducing a Bill amending the Constitution to submit any written comments received in respect of the Bill to the Speaker, and in certain instances to the Chairperson of the NCOP (section 74(6));

(e) prescribes that a Bill amending the Constitution may not be put to the vote within a certain period after its introduction or tabling (section 74(7));

(f) prescribes that where a Bill amending the Constitution concerns a specific province, the Bill may not be passed unless it has been approved by the provincial legislature concerned (section 74(8)); and

(g) prescribes that a Bill amending the Constitution, passed by the National Assembly and the National Council of Provinces, must be referred to the President for assent (section 74(9)).

2.2 In order to determine whether the procedure prescribed by section 74 applies to the Bill, one should ask whether the Bill seeks to amend the Constitution. If the Bill does not seek to amend the Constitution, section 74 of the Constitution does not apply.

2.3 Apart from Bills amending the Constitution, a distinction should perhaps also be made between provisions amending the Constitution and those which do not. To give an example: Section 1 of the Constitution of the Republic of South Africa Second Amendment Act, 2001 (Act No. 61 of 2001), amended section 73 of the Constitution by prescribing that only the Cabinet member responsible for national financial matters may introduce a money Bill in the National Assembly. The nine sections following section 1 also contained amendments to the Constitution, while section 11 of that Act prescribed how that Act should be called and when it is to come into operation. The amendments contained in sections 1 to 10 have been incorporated in the text of the Constitution, while the provisions of section 11 have not been so incorporated. Consequently, sections 1 to 10 are provisions amending the Constitution, while section 11 is a substantive provision of the Amendment Act itself that has no effect on the Constitution. Since the substance of the Constitution of the Republic of South Africa Second Amendment Bill, 2001 (as the Amendment Act was known then) sought to amend the Constitution, Parliament duly regarded that Bill as a Bill amending the Constitution and the procedure prescribed by section 74 applied to that Bill.

2.4 Reference should also be made to sections 75, 76 and 77 of the Constitution.

(a) Section 75 applies to "Ordinary Bills not affecting provinces" (see the heading to that section). It prescribes the procedure that has to be followed in respect of "...a Bill other than a Bill to which the procedure set out in section 74 or 76 applies" (see section 75(1)).

(b) Section 76 prescribes the procedure regarding Bills affecting provinces, e.g. Bills dealing with matters which fall within a functional area listed in Schedule 4 to the Constitution.

(c ) Section 77 of the Constitution prescribes the procedure regarding money Bills, e.g. Bills that appropriate money or imposes national taxes, levies and duties.

Thus, if section 74 or 76 does not apply in respect of a specific Bill, and if that Bill is not a money Bill, the procedure prescribed by section 75 has to be followed.

3.1 As far as clause 1 of the Bill is concerned, it should be noted that nowhere in the Constitution itself a number is allocated to the Constitution. In this respect section 243(1) of the Constitution contains the official short title of the Constitution, which provides that "(t)his Act is called the Constitution of the Republic of South Africa, 1996...". An Act number {viz. "Act No. 108 of 1996") was administratively allocated to the Constitution during 1996, to follow chronologically after Act No. 107 of 1996 (i.e. the Intellectual Property Laws Rationalisation Act, 1996). The allocation of an Act number is a function performed by officers of Parliament at the stage when a Bill has been passed by Parliament and is ready for submission to the President for his assent.

Allocating an Act number therefore does not form part of the legislative process or of the Act itself. Thus, where clause 1 of the Bill seeks to prescribe that the number allocated to the Constitution should no longer be used, that clause in no way purports to amend the Constitution. Therefore the procedure prescribed by section 74 does not apply.

3.2 Clause 2 of the Bill seeks to amend the short titles of Acts that have already amended the Constitution and does not contain or purport to contain any amendment of the Constitution. On this ground alone section 74 of the Constitution does not, in our view, apply. It could furthermore be argued that the Amendment Acts have already effected the amendments contained therein. The only real, substantive provisions which remain in those Acts and which have not been incorporated in the text of the Constitution are the sections dealing with the short titles of the different Acts. As such, those sections had no effect on the Constitution - they did not amend the Constitution. Those sections only prescribe the short titles of the Acts in question and, in some instances, indicate that the Act will come into operation on a date determined by the President.

3.3 Clause 3 of the Bill merely seeks to provide the manner of referring to future laws amending the Constitution. Again, that provision does not contain or purport to contain any amendment of the Constitution.

4. In the light of the above, we are of the view that section 74 of the Constitution does not apply to the Bill. We are furthermore of the view that the Bill is clearly not a Bill contemplated in section 76 or 77 of the Constitution.

Consequently, the Bill should be treated as an ordinary Bill contemplated in section 75 of the Constitution and should be dealt with in terms of the procedure established by that section.

H C SMUTS/R MOSIANE / JJ LABUSCHAGNE