LEGAL OPINION
SUBMISSION BY THE CATHOLIC INSTITUTION OF EDUCATION (A 1) TO THE JOINT
CONSTITUTIONAL REVIEW COMMITTEE
MEMORANDUM
TO: Dr E A Schoeman: Chairperson: Joint Constitutional Review Committee
FROM: Adv Mr Vassen: Parliamentary Legal Adviser: Legal Services Office
DATE: 8 August 2006
1.
You requested that our Office assist the Joint Constitutional Review Committee
(the Committee) by evaluating the feasibility of submissions received from
members of the public "on specific sections of the Constitution that they
feel need to be reviewed".
2. In terms of your brief, submissions that deal with amendments to legislation
or policy matters and not to the Constitution itself are beyond the scope of
the Committee.
3. The Catholic Institution of Education (CIE) is of the view that inequalities
in the provision of education between the various provinces are affecting the
equal enjoyment of rights and freedoms. As such the CIE proposes amendments to
section 9, section 214(2), section 100 and schedule 4 to the Constitution.
Proposed amendments
Section 9(2)
4. The CIE is of the view that whereas section 9(2) of the Constitution
provides that equality requires that legislative and other measures to protect
or advance persons or categories or persons disadvantaged by unfair
discrimination may be taken, there are still inequalities in the provision of
services between the Provinces. In particular, the CIE is of the view that section
29 rights, which pertain to education, have not been progressively and equally
achieved between provinces.
5. The petitioner is thus not proposing an amendment to the Constitution but is
of the view that there is an infringement of the right to education (as
contained in section 29) read together with the right to equality.
6. As the rights in the Bill of Rights are justiciable, the remedy in this
instance is judicial (for example see Government of the Republic of South
Africa and Others v Grootboom and Others 2000 11 BCLR 1169 (CC) or Minister
of Health v Treatment Action Campaign 2002 (10) BCLR 1033 (CC)).
Section 9(4)
7. The petitioner is of the view that whereas section 9(4) stipulates that no
person may unfairly discriminate directly or indirectly against anyone and that
national legislation must be enacted to prevent or prohibit unfair
discrimination, section 9(4) "does not create an obligation on provinces
to enact legislation that prevents or prohibits unfair discrimination".
8. Kentridge is of the view that the purpose of the legislation required by
section 9(4) is to provide further detail on the prohibition of discrimination
that a Constitution can supply and that it is necessary to develop in detail
the remedies and sanctions for breach of the prohibition ("equality" in
Constitutional Law of South Africa, p14-64).
9. In terms of item 23(1) of Schedule 6 to the Constitution, the national
legislation envisaged in section 9(4) had to be enacted within 3 years of the
date on which the final Constitution took effect. Thus while it is a matter of
policy whether or not to amend section 9(4), Parliament in accordance with
section 9(4) has already enacted the Prevention of Unfair Discrimination Act of
2000 (PEPUDA).
10. Furthermore, the legislation referred to in section 9(4) is an area of
exclusive national legislative competence as it is not listed in Schedule 4 to
the Constitution as an area of concurrent national and provincial legislative
competence, nor is it an area of exclusive provincial legislative competence in
terms of Schedule 5 (see Currie and de Waal (eds) The New Constitutional Law
and Administrative Law: Volume 1, Juta, 2001, p 164)
11. Moreover in Mashavha v the President of the Republic of South Africa
2004 (12) aCLR 1243 (CC) the Constitutional Court indicated that in some
instances the commitment to equality is better served through national
legislation. In Mashava the Court held that social assistance was not a
matter that could effectively be regulated by provincial legislation as
apartheid's racially inegalitarian system of distributive justice continued to
be reinscribed by differences in capacity between extant provincial governments
and as such the provinces could not deliver social assistance in a manner that
did not offend the Constitution's commitment to equality (see Madlingozi and
Woolman "Provincial Legislative Authority" in Constitutional Law
of South Africa, 2nd edition, p19-9).
12.ln summary, not only is the legislation envisaged in section 9(4) already
enacted, but it also falls within an area of exclusive national legislative
competence.
Section 214(2)
13. The CIE is of the view that for section 214(2) to be implemented
efficiently it should be linked to section 9 as the "provinces must be
reasonably expected to realise the rights and obligations in the Bill of Rights
[and that] it is unacceptable that learners in one province may be negatively
affected due to unequal service provisions".
14. Section 214 stipulates that an Act of Parliament must provide for the
equitable division of revenue raised nationally among the national, provincial
and local spheres of government, the determination of each province's equitable
share of the provincial share of that revenue, and any other allocations to
provinces, local government or municipalities from the national government's
share of that revenue, and any conditions on which those allocations may be
made.
15.ln terms of section 214(2) however the above mentioned Act may only be
enacted after the provincial governments, organised local government, and the
Fiscal and Financial Commission have been consulted and any recommendations
have been considered. Furthermore section 214(2) also stipulates that this Act
must also take into account the national interest, any provision that must be
made in respect of the national debt and other national obligations, the needs
and interests of the national government determined by objective criteria, the
need to ensure that the provinces and municipalities are able to provide basic
services and perform the functions allocated to them, the fiscal capacity and
efficiency of the provinces and municipalities, developmental and other needs
of provinces, and municipalities in terms of national legislation, the
desirability and predictable allocations of revenue shares and the need for
flexibility in responding to other temporary needs, and other factors based on
similar objective criteria.
16.ln accordance with section 214, Parliament enacted the Intergovernmental
Fiscal Relations Act of 1997 (the IFR) which, inter alia, promotes co-operation
between the national, provincial and local spheres of government on fiscal,
budgetary and financial matters and prescribes the process for the
determination of an equitable sharing and allocation of revenue raised
nationally.
17.ln this regard the IFR Act provides for the establishment of a Budget
Committee which consists of the Minister of Finance and the MEC for finance of
each province as well a Local Government Budget Forum. It also requires the
Fiscal and Financial Commission to submit recommendations to Parliament, the
provincial legislatures and the Minister of Finance on the equitable division
of among the national, provincial and local spheres of government, the
determination of each province's equitable share of that revenue and any other
allocations to provinces, local government or municipalities from the national
government's share of that revenue, and any conditions on which those
allocations should be made.
18.ln my view the petitioner incorrectly interpreted section 214(2). In my
understanding however, the petitioner is in essence of the view that the
determination of each province's equitable share of the budget must be linked
to the equality provision to ensure that there is no unequal service delivery
in the provinces.
19.I am of the view that the Constitution currently provides for this.
20.ln a draft article, (''The Courts and the Intergovernmental Fiscal Relations
in South Africa, http://www.ffc.co.za/conf/papers/courts-igfr.pdf) Professors
Murray and Ajam expressed the view that unlike most other countries, the
drafters of the Constitution considered it necessary to craft a specific fiscal
constitution. They indicate that the Constitution sets out the rules of the
fiscal game by sketching the broad outlines of the complex intergovernmental
fiscal system that the three distinct but inter-related spheres of government
demand and it anticipates legislation as well as inter-governmental fiscal
forums which add substance to this. Furthermore the Constitution also contains
an extensive Bill of Rights which includes social and economic rights and in
which the intergovernmental fiscal system must ensure cooperative service
delivery.
21.ln terms of the founding provisions of the Constitution, South Africa is
founded on human dignity, the achievement of equality and the advancement of
human rights and freedoms (Section 1 (a». In terms of section 7, the Bill of
Rights is a cornerstone of democracy and the state must respect, protect
promote and fulfil the rights in the Bill of Rights. As such the Constitutional
Court has developed an equality jurisprudence on the basis that the achievement
of substantive equality is the key function of the that state in terms of the
Constitution (see Brink V Kitshoff NO 1996 (6) BCLR 752 (CC), President of
the Republic of South Africa and Another v HUQO 1997 (6) BCLR 708 (CC), and
Minister of Finance and Another v Van Heerden 2004 (11) BCLR 1125 (CC)).
22.ln terms of the above jurisprudence, the Court has held that notwithstanding
that an order of court will have fiscal or intergovernmental implications,
where rights contained in the Bill of Rights are infringed, the Court will
order an appropriate remedy. Thus the case of Government of the Republic of
South Africa and Others v Grootboom and Others 2000 (11) BCLR 1169 (CC) on
the right to access to adequate housing had fiscal implications for all three
spheres of government. The more recent case of Khosa and Others v Minister
of Social Development: Mahlaule and Another v Minister of Social Development
and Others. 2004 (6) SA 505 (CC) concerned access to social grants and had
an impact on the division of revenue between the national and provincial
governments (also see Murray and Ajam above, p 6).
23. Thus if an individual or a class of individuals are of the view that the
rights contained in section 29 have been infringed, they may petition a court
for relief. In my view the proposed amendment to section 214(2) will not take
the matter further.
Section 100
24. The petitioner is of the view that in the light of unequal provision of
services between the provinces, that section 100(1) of the Constitution be
amended.
25. Section 100(1) provides that when a province cannot or does not fulfil an
executive obligation in terms of the Constitution or legislation, the national
executive may intervene by taking any appropriate steps to ensure fulfilment of
that obligation, including issuing a directive to the provincial executive,
describing the extent of the failure to fulfil its obligations and stating any
steps required to meet its obligations, and assuming responsibility for the
relevant obligation in that province to the extent necessary to maintain
essential national standards or meet established minimum standards for the rendering
of a service, to maintain economic unity, national security, or to prevent that
province from taking unreasonable action that is prejudicial to the interests
of another province or the country as a whole.
26. The petitioner is of the view that section 100 interventions must be made
peremptory rather than discretionary as it suggests that where a province
cannot or does not fulfil an executive obligation in terms of the Constitution
or legislation, the national executive must intervene.
27. While the above amendment is a matter of policy, such an amendment would
impact upon the current system of co-operative government as provided for in
terms of Chapter 3 of the Constitution. Section 40(1) recognises that
government is constituted as national, provincial and local spheres that .that
such spheres are distinctive, interdependent and interrelated"(see Currie
and de Waal, p 260).
28. Thus while in terms of section 100(1), the Constitution tasks national
government with the overall responsibility of ensuring that other spheres of
government carry out their obligations in terms of the Constitution, in Ex
parte Chairperson of the Constitutional Assembly: In re Certification of the
Constitution of the Republic of South Africa. 1996 (10) BCLR 1253 (CC) the
Court held that section 100 is an exceptional measure. The Court also indicated
that the right to intervene is inter alia subject to the provisions of
41 (1 )(e), (f) and (g) of which require all levels of government to respect
the constitutional status, institutions, powers and functions of government in
the other spheres, not assume any power or function except those conferred on
them in terms of the Constitution and to exercise their powers and functions in
a manner that does not encroach on the geographical, functional or
institutional integrity of government in another sphere (paragraph 263-4).
29. The Court also indicated that it is for this reason that section 100(2)
requires that the National Council of Provinces must be informed of an
intervention, and approve of it and exercise oversight over an intervention by
national government.
30. Devenish (LAWSA, Volume 5(3) second edition, paragraph 184)
indicates that the current system of inter-governmental relationships "is
intended to reduce political tension between, on the one hand, central
government and the provinces and, on the other hand, between the provinces
themselves. The stability of the central administration is also intended to
benefit from co-operative government by virtue of the fact that all
stakeholders are brought into the political and constitutional process in a
constructive manner."
31. Thus while an amendment to section 100 is a matter of policy, the suggested
amendment will significantly alter the system of co-operative government and
independence of provincial spheres of government as it currently exists.
Schedule 4
32. The petitioner is of the view that Schedule 4 to the Constitution "be
amended so as to provide a legal space for intervention by national departments
with clear warnings to provinces on areas where their competence may be
temporarily revoked".
33. Schedule 4 lists areas of concurrent national and provincial legislative
authority and does not pertain to interventions. Furthermore, as section 1 00
already provides for interventions, such an amendment will in my view be
superfluous.
DATE: 8 August 2006
SUBJECT : Submission A(3) by Mothuloe Attorneys, Notaries and Conveyancers
to the Joint Constitutional Review Committee
1. You requested that our Office assist the Joint Constitutional Review
Committee (the Committee) by evaluating the feasibility of submissions received
from members of the public "on specific sections of the Constitution that
they feel need to be reviewed".
2. In terms of your brief, submissions that deal with amendments to legislation
or policy matters and not to the Constitution itself are beyond the scope of
the Committee.
3. The petitioner's submissions relate to Commissioners appointed to Chapter 9
State Institutions Supporting Constitutional Democracy (Chapter 9
Institutions).
The number of Commissioners appointed to Chapter 9 Institutions
4. The petitioner is of the view that there are too many Commissioners
appointed to each Commission.
5. The Constitution does not specify the number of Commissioners that must be
appointed to each Commission. Instead, the composition of each Commission is
governed by national legislation and the number of Commissioners is specific to
each Commission. For example, section 3(1) of the Commission on Gender Equality
Act of 1996 stipulates that the Gender Commission shall consist of a
chairperson and no fewer than seven and no more than eleven members.
6. As the number and composition of the Commissions are defined in national
legislation and not the Constitution, it is not appropriate that the Committee
address this proposal unless it wishes to include such a limitation on the
number of Commissioners in the Constitution itself. The Committee may however
refer the matter to the Portfolio Committee on Justice and Constitutional
Development.
The qualification and performance of Commissioners
7. The petitioner is of the view that the Constitution does not define the
requirements or qualifications of Commissioners and that there is no yardstick
to with which to measure their performance.
8. Section 193 stipulates that the Public Protector, the Auditor-General and
the members of any Commission established in terms of Chapter 9 must inter alia
be "fit and proper persons to hold the particular office" and must
comply with any other requirements prescribed by national legislation. Section
193(2) further provides that the Commissions must broadly reflect the race and
gender composition of South Africa.
9. In accordance with section 193, the relevant national legislation specifies
any additional qualifications of Commissioners. For example, section 6(1) of
the Electoral Commission Act of 1996 stipulates that the Commission shall
consist of five members, one of whom shall be a judge. Furthermore section 6(5)
specifies that the selection panel must make recommendations with due regard to
a person's suitability, qualifications and experience.
10. As such the qualifications and grounds for removal from office of the
Public Protector, the Auditor-General and Commissioners are already defined in
both the Constitution and national legislation.
11. Furthermore in my view the position of a Commissioner is sui generis as it
is designed to protect the independence of the Commissions and Commissioners.
As such whereas section 181(5) provides that Chapter 9 Institutions are
accountable to the National Assembly and must report on their activities are
the performance of their functions at least once a year, neither the
Constitution nor legislation specifies yardsticks by which Commissioners are
measured. Section 194 does however provide the grounds on which Commissioners
may be removed.
12. Section 194 provides that Commissioners may be removed from office on the
grounds of misconduct, incompetence or incapacity, on a finding to that effect
by committee of the National Assembly and the adoption of an Assembly
resolution calling for that person's removal.
13.As such where a Commissioner is not performing accordingly he or she may be
removed on the grounds of incapacity or incompetence, as the case may be.
However the process is neither spelt out in the Constitution or in the relevant
legislation.
14.ln my view the Constitution already defines the requirements or
qualifications of Commissioners as well as the grounds for removal should they
not perform their functions.
Other matters
15. The petitioner is also of the view that there is no demarcation between the
functions of the Commissioners and the functionaries of these institutions and
that in some instances the Commissioners "usurp the duties and functions
of Senior Management in these organisations, yet refuse to take the blame for
concomitant failures and mistakes".
16.ln my view these issues fall beyond the purview of the Committee. The issues
of administration and management of these institutions may however be referred
to the Portfolio Committee on Justice and Constitutional Development.
DATE: 8 August 2006
SUBJECT : Submission A(6) by S Mokeona to the Joint Constitutional Review
Committee
1. You requested that our Office assist the Joint Constitutional Review
Committee (the Committee) by evaluating the feasibility of submissions received
from members of the public "on specific sections of the Constitution that
they feel need to be reviewed".
2. In terms of your brief, submissions that deal with amendments to legislation
or policy matters and not to the Constitution itself are beyond the scope of
the Committee.
3. The petitioner is of the view that section 182 of the Constitution should be
amended so as to enable the Public Protector to investigate "people and
violations committed in the private sector". The petitioner is also of the
view that that the South African Human Rights Commission (SAHRC) should be
empowered to enter any institution to "effect respect and protection of
human rights by educating the public and perusing all documents, including the
policies of the institution.
Amendment of section 182 of the Constitution
4. Section 182(1) provides that the Public Protector has the power, as
regulated by national legislation to investigate any conduct in state affairs,
or in the public administration in any sphere of government, that is alleged or
suspected to be improper or to result in any impropriety or prejudice.
5. The petitioner is of the view that section 182 be amended so as to enable
the Public Protector to investigate "people and violations committed in
the private sector".
6. While the above is a matter of policy, in my view such a proposal would
impact on the role of other investigatory bodies. In Ex parte Chairperson of
the Constitutional Assembly: In re Certification of the Constitution of the
Republic of South Africa 1996 10 BCLR 1253 (CC) at paragraph 161 the
Constitutional Court stated that "[t]he purpose of the office of Public
Protector is to ensure that there is an effective public service which
maintains a high standard of professional ethics... The Public Protector is an
office modeled on the institution of the ombudsman [in Denmark, Norway, New
Zealand and the United Kingdom], whose function is to ensure that government
officials carry out their tasks effectively, fairly and without corruption or
prejudice... [it is] clearly envisaged that members of the public aggrieved by
the conduct of government officials should be able to lodge their complaints
with the Public Protector, who will investigate them and take appropriate
remedial action."
7. As such the Public Protector is by definition a high level official that is
independent of government and a political party and who has the power to
investigate government at any level, any person performing a public function,
corporations or companies owned or partially owned by the state, as well as
statutory councils. Furthermore as stipulated in the preamble to the Public
Protector Act of 1994, the function of the Public Protector is to strengthen
and support constitutional democracy in South Africa and not to adjudicate or
investigate violations of the rights of the general public in all matters.
8. Should the scope of work of the Public Protector be expanded in the manner
suggested it would overlap with that of other statutory bodies such as the
South African Human Rights Commission (SAHRC). It would in all probability also
overlap with a number of self-regulating bodies that are already in existence
in the private sector such as the Pensions Adjudicator and so forth.
9. The suggested amendment would significantly expand the role of the Public
Protector and would require additional resourcing and infrastructure.
Empowering the SAHRC to enter any institution and peruse all documents,
including the policies of the institution in so far as human rights are
concerned.
10. The petitioner is of the view that the SAHRC should be empowered to enter
any institution to peruse all documents, including the policies of the
institution in so far as human rights are concerned.
11. Section 184(2) of the Constitution, inter alia, stipulates that the
Commission has the powers, as regulated by national legislation, necessary to
perform its functions, including the power to investigate and report on the
observance of human rights, take steps to secure appropriate redress where
human rights have been violated and to educate the public on human rights
issues. As such section 9 of the Human Rights Commission Act of 1994 stipulates
that where there has been a complaint of a human rights violation, the
Commission may conduct an investigation and require any person to appear before
it at a time and place specified and to produce all articles or documents in
the possession or custody or under the control of any person which may be
necessary in connection with that investigation.
12. Should it be deemed feasible that the SAHRC be given the additional powers
as suggested, this would need to be included in the Human Rights Commission Act
and not the Constitution itself. As such it is a matter that should be dealt
with by Portfolio Committee on Justice and Constitutional Development, rather
than the Committee.
Other matters raised
13. The petitioner also expressed the view that in the Jacob Zuma rape
trial, the victim's sexual history was revealed in public but that this was not
done to the accused and as such in his/her view, there seems to be two separate
systems of law - one for the poor and one for the rich and famous.
14. The petitioner is also of the view that there is not an equitable
observance of all religions on an equal basis by the state in that while all
Christian holidays are observed and regarded as public holidays, the same is
not extended to other religions. As such the petitioner is of the view that
either each religion's holidays be observed or that all religious holidays
should not be public holidays.
15. The above two submissions do not propose amendments to the Constitution. Instead,
they are allegations that certain provisions of the Constitution are being
violated. As such, it is not within the brief of the Committee to consider the
latter two submissions by the petitioner.
SUBJECT: Submission A(7) by Mr J H Fourie to the Joint Constitutional
Review Committee
1.You requested that our Office assist the Joint Constitutional Review
Committee(the Committee) by evaluating the feasibility of submissions received
from members of the public “on specific sections of the Constitution that they
feel need to be reviewed”.
2. In terms of your brief, submissions that deal with amendments to legislation
or policy matters and not to the Constitution itself are beyond the scope of
the Committee.
3. Mr Fourie proposes that section 9(5) of the Constitution be removed from the
Constitution as "it is unfair to declare some forms of discrimination as
fair".
4. Section 9(5) provides that discrimination on one or more of the grounds
listed in subsection (3) (including race, gender, sex, pregnancy, marital
status, ethnic or social origin, colour, sexual orientation, age, disability,
religion , conscience , belief ,culture , language and birth) is unfair unless
it is established that the discrimination is fair.
In brief , section 9(5) provides that if a complainant is able to show
discrimination on a ground listed in section 9(3) , the onus of showing that
the discrimination is fair rests on the respondent Albertyn in South African
Constitutional Law: The Bill of Rights (Cheadle , Davis and Haysom , (eds) ,
Butterworths , 2002 , at p 113) indicates that this provision was included to
assist persons to bring claims as discrimination can be difficult to prove, not
only because it may raise issues requiring an assessment of sociological and
statistical information, but also because much of this information is out of
the reach of ordinary people. She indicates that the division of the enquiry
into two stages "is practically valuable because it limits the burden of
disadvantaged complainants and ensures that there is a proper focus on the
contextual enquiry when fairness is considered. It also preserves a conceptual
distinction between what is discriminatory, but legitimate, and what is
illegitimate and unconstitutional."
6. Thus while the petitioner suggested that section 9(5) be removed, he was of
the view that "it is unfair to declare some forms of discrimination as
fair". As such the thrust of his petition is not directed at section 9(5)
of the Constitution but rather at those sections that deem listed forms of
discrimination as fair.
7. In Brink v Kitshoff NO 1996(6) BCLR 752 (CC), the first
Constitutional Court case that dealt with the right to equality, 0' Reagan J
differentiated between formal equality and substantive equality. She expressed
the view that the equality clause in the Constitution was adopted in the
recognition that past discrimination led to patterns of group disadvantage and
harm. She held that "[t]he need to prohibit such patterns of
discrimination and remedy their results are the primary purpose of [the
equality clause]" (paragraph 42).
8. Since Brink v Kitshoff, the Constitution Court has reiterated and
re-emphasised that the Constitution prescribes that remedial action must be
taken to achieve substantive equality. Thus where such measures were taken to
achieve substantive equality in accordance with section 9, the discrimination
is regarded as fair (see for example President of the Republic of South
Africa and Another v Hugo 1997 6 BCLR 708 (CC) and National Coalition
for Gay and Lesbian Equality and Another v Minister of Justice and Others 1998
(12) BCLR 1517 (CC).
9. More recently, in Minister of Finance and Another v Van Heerden 2004
(11) BCLR 1125 (CC), Moseneke J (as he was then) held that the
"Constitution enjoins us to dismantle [past forms of discrimination]
...Our supreme law says more about equality than do comparable constitutions.
Like other constitutions, it confers the right to equal protection and benefit
of the law and the right to non-discrimination. But it also imposes a positive
duty on all organs of state to protect and promote the achievement of
equality".
10. Moseneke J thus concluded that our constitutional understanding of
substantive"equality includes remedial or restitutionary equality and as
such fair discrimination measures are not in themselves "a deviation from,
or invasive of, the right to equality. They are not 'reverse discrimination' or
'positive discrimination' ... They are integral to the reach of our equality
protection... Absent a positive commitment progressively to eradicate socially
constructed barriers to equality and to root out systematic or
institutionalised under-privilege, the constitutional promise of equality
before the law and its equal protection and benefit must, in the context of our
country, ring hollow" (paragraph 31).
11. While the question is a matter of policy, if the provision in section 9
that allows for "fair discrimination" is removed it would prevent
remedial or restitutionary measures taken to address past patterns of
discrimination.
DATE: 8 August 2006
SUBJECT: Submission A(8) by the South African Human Rights Commission to the
Joint Constitutional Review Committee
1. You requested that our Office assist the Joint Constitutional Review
Committee (the Committee) by evaluating the feasibility of submissions received
from members of the public “on specific sections of the Constitutions that they
feel need to be reviewed.
2. You orally indicated that submissions that deal with amendments to legislation
or policy matters and not to the Constitution itself are beyond the scope of
the Committee
3. The submission by the South African Human Rights Commission (SAHRC) seeks to
"comment on how far we have progressed as a nation in achieving equality
for persons with disabilities" by, inter alia, highlighting the current
jurisprudence on equality in relation to disability, the current challenges
facing the SAHRC itself and the failure of the state to fully address the needs
of persons who are disabled.
5. Thus while the submission highlights the lack of progress in achieving
substantive equality for disabled persons and suggests that policies and
programmes need to address the situation, it does not propose or suggest that
the Constitution be amended.
DATE: 8 August 2006
SUBJECT: Submission A(9) by the Human Rights Institute of South Africa to the
Joint Constitutional Review Committee
1. The Human Rights Institute of South Africa (HURISA) wrote to the Joint
Constitutional Review Committee to thank it for inviting the public to make
submissions but did not propose any amendments to the Constitution.
8 August 2006
SUBJECT: Submission A(10) by Mr T M Motsoeneng to the Joint Constitutional
Review Committee
1. You requested that our Office assist the Joint Constitutional Review
Committee (the Committee) by evaluating the feasibility of submissions received
from members of the public "on specific sections of the Constitution that
they feel need to be reviewed".
2. In terms of your brief, submissions that deal with amendments to legislation
or policy matters and not to the Constitution itself are beyond the scope of
the Committee.
3. In his submission Mr Motsoeneng provides his view of the law and state of
politics in South Africa and how it should function. He also expresses his view
on the President and Executive, Parliament, judges and Chapter 9 Institutions.
4. The submission concludes by suggesting that appointees to the various
Commissions should be reviewed and that they should be led by people with a thorough
understanding of politics rather than law. He also suggests that judges,
including Constitutional Court judges, do not have an understanding of
constitutionalism and should be trained by the SA Human Rights Commission.
5. Mr Motsoeneng further concludes that as South Africa is no longer a
"parliamentary sovereignty", a state department should be the
custodian and enforcer of the Constitution and not Parliament. In this
regard he suggests that Chapter 9 Institutions be merged and function as a
government department to make them more directly accountable.
He further suggests that the President be directly elected by the people and
not by the members of the Assembly as members of Parliament currently see
government as an extension of their political party.
Merging Chapter 9 Institutions under a state department to make them more
accountable
5 Section 181 (1) and (2) of the Constitution provides that the institutions
listed in Chapter 9 of the Constitution "strengthen constitutional
democracy" and that these institutions "are independent, and subject
only to the Constitution and the law, and they must be impartial and exercise
their powers and perform their functions without fear, favour or
prejudice" .
6 The independence of these institutions are further strengthened and protected
by section 181 (3), which provides that other organs of state, through
legislative and other measures, must assist and protect these institutions to ensure
the independence, impartiality, dignity and effectiveness of these institutions
(my emphasis). Furthermore section 181 (4) provides that no person or organ of
state may interfere with the functioning of these institutions.
7 In my view the rationality for creating state institutions that support
constitutional democracy is to ensure the accountability of government through
these independent and impartial bodies. As such their effectiveness is also
linked to their independence.
8 In my view merging Chapter 9 Institutions into a state department would
significantly diminish their independence, impartiality and effectiveness as
currently provided for.
The President to be directly elected
9 The petitioner also proposes that the President be directly elected by the
people and not by the National Assembly.
10 Section 86(1) of the Constitution provides that at its first sitting after
its election, and whenever necessary to fill a vacancy, the National Assembly
must elect a woman or a man from among its members to the be President.
11 In UDM v President of the RSA and Others 1 2002 11 BCLR 1179 (CC) the
Constitutional Court indicated that Parliament may amend the electoral system
provided it does so in accordance with the Constitution. However while the
desirability of such an amendment is of course a political consideration, the
proposal would involve far more than just the amendment of section 86(1) as it
would change our current system of elections and parliamentary democracy in
general.
12 The feasibility of changing the electoral system was researched and
discussed by the Van Zyl Siabbert Commission.
13 Should the Committee deem the submission appropriate, it would also need to
undertake a detailed study of the electoral system and the pros and cons of
changing the current system.
DATE: 8 August 2006
SUBJECT: Submission B(1) by the Commission on Gender Equality (Limpopo
Province) to the Joint Constitutional Review Committee
1. You requested that our Office assist the Joint Constitutional Review
Committee (the Committee) by evaluating the feasibility of submissions received
from members of the public "on specific sections of the Constitution that
they feel need to be reviewed".
2. In terms of your brief, submissions that deal with amendments to legislation
or policy matters and not to the Constitution itself are beyond the scope of
the Committee.
3. In its submission, the Commission on Gender Equality (Limpopo Province)
proposes amendments to the Commission on Gender Equality Act of 1996 and the
Public Finance Management Act of 2000.
4. As the submission does not propose amendments to the Constitution, it does
not fall within the parameters of the brief.
5. The submission may however be forwarded to the Portfolio Committee on
Justice .and Constitutional Development.
DATE: 8 August 2006
SUBJECT: Submission B(2) by the Commission on Gender Equality to the Joint
Constitutional Review Committee
1. You requested that our Office assist the Joint Constitutional Review
Committee (the Committee) by evaluating the feasibility of submissions received
from members of the public "on specific sections of the Constitution that
they feel need to be reviewed".
2. In terms of your brief, submissions that deal with amendments to legislation
or policy matters and not to the Constitution itself are beyond the scope of
the Committee.
3. In its submission the Commission on Gender Equality (CGE) assesses its
day-to-day functioning in light of the Constitution, the Commission on Gender
Equality Act of 1996 (CGE Act) and the Promotion of Equality and Prevention of
Unfair Discrimination Act of 2000 (PEPUDA).
Proposed amendments to the Constitution
Selection of Commissioners and members of Chapter 9 Institutions
4. The CGE indicated that they are currently only functioning with one
Commissioner, namely the Chairperson as "the busy parliamentary schedule
has made it difficult for members of Parliament to meet timeously" to
appoint new Commissioners to the CGE.
5. As such they propose that the Constitution be amended to provide that
instead of Parliament shortlisting, interviewing and nominating members of
Chapter 9 Institutions, that an external panel or independent committee similar
to the Judicial Services Commission be constituted to deal with the selection
of all members.
6. Section 193(4) currently provides that the President, on the recommendation
of the National Assembly, must appoint the Public Protector, the
Auditor-General and the members of the South African Human Rights Commission,
the Commission on Gender Equality, and the Electoral Commission.
7. Furthermore, in terms of section 193(5) the National Assembly must recommend
persons nominated by a committee of the Assembly proportionally composed of
members of all parties represented in the Assembly and approved by the Assembly
by a resolution adopted with a supporting vote of at least 60 per cent of the
members of the Assembly if the recommendation concerns the appointment of the
Public Protector or the Auditor-General or of a majority of members if it
concerns the appointment of a member of a Commission.
8. In Ex parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa. 1996 (10)
BCLR 1253, the Constitutional Court held that the Constitutional Principles
did "not require the constitutional establishment of the Human Rights
Commission, the Commission on the Promotion and Protection of the Rights of
Cultural, Religious and Linguistic Communities and the Commission for Gender
Equality" (paragraph 179) and as such it did not comment on the
appointment of its members or their powers and functions.
9. How Commissioners and other members of Chapter 9 Institutions are appointed
is thus a policy matter that has been incorporated into the Constitution to
provide certainty. Currently the appointment provisions in section 193 gives
effect to section 181 (2) which provides that these institutions are
independent, subject only to the Constitution and the law, and "must be
impartial, and must exercise their powers and perform their functions without
fear, favour or prejudice".
10.ln my view it is a matter of policy whether members are appointed by an
external panel or an independent committee similar to the Judicial Services
Commission or in terms of section 193 in its present
construction, provided that they are appointed in a manner consistent with
section 181.
Empowering the Commission on Gender Equality to ensure appropriate redress
where gender discrimination has occurred
11. The CGE indicates that whereas section 184(2)(b) empowers the South
African Human Rights Commission (SAHRC) to take steps to secure appropriate
redress where human rights have been violated, section 187(2) does not empower
the CGE to take steps to secure appropriate redress in cases of gender
discrimination.
12. Whether or not the CGE is empowered to take steps to secure appropriate
redress where gender rights have been violated is a matter of policy. It may
however be noted that any unfair discrimination on the basis of gender would
also constitute a human rights violation and as such the SAHRC would also have
the requisite jurisdiction to seek appropriate redress on behalf of a
complainant.
Other matters
13. The CGE also proposed amendments to certain provisions in the CGE Act and
PEPUDA. In my view it would be more appropriate to forward these suggestions to
the Portfolio Committee on Justice and Constitutional Development.
DATE: 8 August 2006
SUBJECT: Submission E by learners from Hendrik Verwoerd High, Tshwane to the
Joint Constitutional Review Committee
1. You requested that our Office assist the Joint Constitutional Review
Committee (the Committee) by evaluating the feasibility of submissions received
from members of the public "on specific sections of the Constitution that
they feel need to be reviewed".
2. In terms of your brief, submissions that deal with amendments to legislation
or policy matters and not to the Constitution itself are beyond the scope of
the Committee.
3. The petitioners have proposed changes to Chapter 9 of the Constitution
PROPOSED GENERAL AMENDMENTS TO CHAPTER 9
Chapter 9 Institutions need to be more accessible to the public, especially
the uneducated and the poor
4. Section 182(4) of the Constitution specifically, provides that the Public
Protector "must be accessible to all persons and communities. Furthermore
section 181(3) generally provides that other organs of state, through
legislative and other means, must assist and protect these Chapter 9
Institutions to ensure the independence, impartiality and effectiveness of
these institutions (my emphasis).
5. Thus apart from the Public Protector, there are no specific provisions in
the Constitution that require Chapter 9 Institutions to be accessible to the
public, especially those sectors that remain marginalized.
Irrespective of any other principles, members of Commissions should be
appointed purely on merit
6. Section 193 stipulates that the Public Protector, the Auditor-General and
the members of any Commission established in terms of Chapter 9 must inter alia
be "fit and proper persons to hold the particular office" and must
comply with any other requirements prescribed by national legislation. In
addition, section 193(3) provides that the Auditor-General must have
specialised knowledge of, or experience in auditing, state finances and public
administration.
7. In accordance with section 193, the relevant national legislation specifies
additional qualifications of Commissioners. For example, section 6(1) of the
Electoral Commission Act of 1996 stipulates that the Commission shall consist
of five members, one of whom shall be a judge. Furthermore section 6(5)
specifies that the selection panel must make recommendations with due regard to
a person's suitability, qualifications and experience.
8. Nevertheless, section 193(2) also requires that the Commissions must broadly
reflect the race and gender composition of South Africa.
9. While it is a matter of policy whether or not to amend the above provision,
Devenish indicates that the need for the Commissions to reflect broadly the
race and gender composition of South Africa "is essential to ensure that
they have legitimacy in the community at large" (LAWSA, Vol 5(3), Second
Edition, paragraph 303).
Another Chapter 9 Institution needs to be created to promote and safeguard
the rights of children and that such a body needs to report to Parliament twice
a year.
10. The petitioners are of the view that another Chapter 9 Institution needs to
be created to promote and safeguard the rights of children and such a body
needs to report to Parliament twice a year.
11. Section 28 of the Bill of Rights specifically protects the rights of
children. Section 28(1), inter alia, provides that every child has the right to
a name and a nationality from birth, family care or parental care, or to
appropriate alternative care when removed from the family environment, basic
nutrition, shelter, basic health care services and social services, be
protected from maltreatment, neglect, abuse or degradation, protected from
exploitative labour practices, not be required or permitted to perform work or provide
services that are inappropriate for a person of that child's age or place at
risk the child's well-being, education, physical or mental health or spiritual,
moral or social development and not to be detained except as a measure of last
resort.
12. The inclusion in the Bill of Rights of a special section on the rights of
the child was an important development for South African children, some who
were detained without trial, tortured and assaulted while many faced
discrimination in healthcare, education and other areas. The Constitution
recognises that children need special protection because they are among the
most vulnerable members of society they are dependent on others - their
parents and families, or the state when these fail - for care and protection.
As a result, the drafters of our Constitution have made children's rights a
priority - and have stated that the best interests of a child are the
overriding concern when it comes to any matter affecting him or her (section
28(2). Despite the aforementioned, there is no separate institution that
protects the rights of children.
13. Devenish (LAWSA, Vol 5(3), Second Edition, paragraph 302) indicates that in
order to promote the principles of democracy, freedom and equality on which the
Constitution is premised in a practical manner, the Constitution establishes
certain commissions and offices designed to provide meaningful support for the
system of constitutional democracy, open government and good governance
Accordingly these institutions are referred to as "State Institutions
Supporting Constitutional Democracy". As such I am of the view that it
would not be appropriate to locate a commission on children in Chapter 9.
14. It must also be noted that since the entry into force of the United Nations
Convention on the Rights of the Child of 1989 (which South Africa ratified on
16 July 2005) a number of countries have incorporated children's rights into
their national constitutions.
15. Ultimately however, whether or not such a body needs to be created is a
matter of policy. However in terms of the above in my view it would not be
appropriate for such a body to be included as a Chapter 9 Institution.
Measures to ensure the impartiality of Chapter 9 Institutions need to be
included in the Constitution
16. Section 181 (1) and (2) of the Constitution provides that the
institutions listed in Chapter 9 of the Constitution "strengthen
constitutional democracy" and that these institutions "are
independent, and subject only to the Constitution and the law, and they must be
impartial and exercise their powers and perform their functions without fear,
favour or prejudice".
17. The independence of these institutions are further strengthened and
protected by section 181 (3), which provides that other organs of state,
through legislative and other measures, must assist and protect these
institutions to ensure the independence, impartiality, dignity and
effectiveness of these institutions. Furthermore section 181(4) provides that
no person or organ of state may interfere with the functioning of these
institutions.
18. Section 194 further provides that Commissioners may be removed from office
on the grounds of misconduct, incompetence or incapacity, on a finding to that
effect by a committee of the National Assembly and the adoption of an Assembly
resolution calling for that person's removal.
19. As such measures to ensure the impartiality of the Chapter 9 Institutions
are already contained in the Constitution.
The public needs to be informed on an ongoing basis about Chapter 9
Institutions, their functions and how to contact them
20. While the above submission is a matter of policy, such detail is usually
not included in the Constitution itself, but rather in legislation or policy
documents.
Free quality mother tongue education
21. While I am unsure what the petitioner means by the above submission,
section 29(2) of the Bill of Rights provides that "[e]veryone has the
right to receive education in the official language or languages of their
choice in public educational institutions where that educational is reasonably
practicable. In order to ensure the effective access to, and implementation of,
this right, the state must consider all reasonable alternatives" including
single medium institutions taking into account equity, practicability, and the
need to redress the results of past racially discriminatory laws and practices.
22. As such the Constitution provides for the provision of mother tongue
education at state cost in terms of the guidelines set above. In addition,
section 29(3) provides that everyone also has the right to establish and
maintain at their own expense, independent institutions provided, inter alia,
that they do not discriminate on the basis of race and that they maintain
standards that are not inferior to standards at comparable public educational
institutions.
Replace the affirmative action criteria for the selection of Chapter 9
Institutions with an educational, training and skills criteria.
23. This submission is dealt with in paragraphs 6 to 9 above.
SUBMISSIONS ON THE PUBLIC PROTECTOR
Term of office
24. The petitioners are of the view that to reduce the possibility of the abuse
of power by the Public Protector, the term of the Public Protector needs to be
reduced from 7 years to 5 years and that the incumbent may only serve 1 term.
25. Section 183 provides that the Public Protector is appointed for a
non-renewable period of 7 years.
26. While the decision whether or not the term of the Public Protector should
be reduced from 7 to 5 years is a matter of policy, in the
certification judgment the Constitutional Court did not regard the seven year
term of the Public Protector as problematic (Ex parte Chairperson of the
Constitutional Assembly: In re Certification of the Constitution of the Republic
of South Africa. 1996 (10) BCLR 1253 (CC) at paragraph 161-3).
The powers of the Public Protector need to be extended to review court
decisions
27. Section 182(3) stipulates that the Public Protector may not investigate court
decisions. This provision is consistent with section 165 of the Constitution
which vests the judicial authority of the Republic in the courts and provides
that the courts are independent, subject only to the Constitution and the law,
which they must apply impartially without fear, favour or prejudice.
Furthermore, section 165(3) stipulates that no person or organ of state may
interfere with the functioning of the courts.
28. As such an amendment to the Constitution in the manner suggested by the
petitioner would conflict with section 165. It would also have a major impact
on the impartiality of the courts and the separation of powers implied in our
Constitution.
The Public Protector must report to Parliament regularly and make
recommendations
29. Section 182(5) provides that all Chapter 9 Institutions are accountable to
the National Assembly and must report on their activities and the performance
of their functions to the Assembly at least once a year.
30.ln addition section 182, inter alia, provides that the Public Protector has
the power to investigate any conduct in state affairs that is alleged or
suspected to be improper or to result in any impropriety or prejudice, to
report on that conduct and to take appropriate remedial action.
31. While the Constitution does not specify the remedial action that must be
taken, section 6(4 )(c) of the Public Protector Act inter alia provides that at
a time prior to, during or after an investigation, if the Public
Protector is of the opinion that the facts disclose the commission of an
offence by any person, he or she may bring the matter to the notice of the
authority charged with prosecutions. Furthermore he or she may make an
appropriate recommendation regarding the redress of the prejudice resulting
therefrom or make any other appropriate recommendation he or she deems
expedient to the affected public body or authority.
32. Bishop and Woolman ("The Public Protector" in Constitutional
Law of South Africa, Second Edition, p 24A-15-16) observed that in practice,
the Public Protector's primary means of responding to a complainant's
legitimate grievance has been to refer the matter to the appropriate public
body and to make a recommendation to that body as the appropriate form of
redress.
33. While it is a matter of policy whether or not to incorporate the suggestion
of the petitioners into the Constitution, I am of the view that the suggested
amendment will not confer any additional benefits or protection or enhance the
functioning of the Public Protector.
The Public Protector must devise mechanisms to shorten legal processes
34. The petitioners are of the view that the Public Protector must devise
mechanisms to shorten legal processes.
35. While section 182(3) does not permit the Public Protector to investigate
court decisions, the Public Protector may investigate complaints relating to
delays in judicial decision-making (see Bishop and Woolman, p 24A-10).
36. While the proposal is a matter of policy, in my view, this function is not
consistent with the role of the Public Protector who is tasked with
investigating conduct in state affairs or in the public administration in any
sphere of government that is alleged or suspected to be improper to result in
any impropriety or prejudice
SUBMISSIONS ON THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION (SAHRC)
THE SAHRC must report regularly to Parliament with regard to progress in
providing basic services such as health, housing, water and sanitation
37. Section 184(3) currently provides that each year the SAHRC must require
relevant organs of state to provide it with information on the measures they
have taken towards the realisation of the rights in the Bill of Rights
concerning housing, health care, food, water, social security, education and
the environment.
38.ln addition section 181 (5) stipulates that the SAHRC is accountable to the
National Assembly and must report on their activities and the performance of
their functions to the Assembly at least once a year.
39. Whether or not the SAHRC should also be provided with information on the
measures taken in respect of housing and sanitation is a matter of policy.
The SAHRC to promote respect for all peoples regardless of their religious
conviction or their lack thereof
40. Section 184(1), inter alia, stipulates that the SAHRC must promote respect
for human rights and a culture of human rights as well as promote the
protection, development and attainment of human rights. This would include the
promotion of the rights contained in section 15(1) which provides that everyone
has the right to freedom of conscience, religion, thought, belief and opinion.
41. Additionally, section 184(2) also provides that the SAHRC may also
investigate and report on the observance of human rights and take steps to
secure appropriate redress where human rights have been violated.
42. As the Constitution already stipulates that the SAHRC must promote the
rights contained in the Bill of Rights, there is thus no need to specifically
promote the rights contained in section 15.
Prisoners should loose their right to vote
43. The petitioners are of the view that prisoners must loose their right to
vote.
44.ln my view the rights of prisoners to vote are unrelated to the functioning
of the SAHRC except in so far as a prisoner who is not allowed to vote may
lodge a complaint with the SAHRC.
45. The issue of prisoners' rights to vote was before the Constitutional Court
on two occasions. In August and Another v Electoral Commission and Others
1999 (3) SA 1 (CC), the Constitutional Court indicated that section 1 (d),
a founding provisions of the Constitution, provides South Africa is, inter
alia, founded on the value of universal adult suffrage and a national common
voters roll. Furthermore the Court pointed out that section 19(3)(a) went
further by guaranteeing that every adult citizen has the right to vote in
elections for any legislative body established in terms of the Constitution,
and to do so in secret. The court stated that unlike the interim Constitution,
section 19 does not contain any provisions that allow for disqualifications
from voting to be prescribed by law. Accordingly, the Court held that if
Parliament seeks to limit the unqualified right of adult suffrage it may do so
only by an amendment to the Constitution.
46.ln Minister of Home Affairs v NICRO and Others 2004 (5) BCLR 445 (CC), the
Constitutional Court declared that certain provisions of the Electoral Act to
be unconstitutional as it deprived prisoners serving a sentence of imprisonment
without the option of a fine of the right to register and vote in elections.
Chaskalson CJ, writing for the majority, highlighted the fact that, given the
history of disenfranchisement in South African, the right to vote occupies a
special place in our democracy and that any limitation of this right must be
supported by clear and convincing reasons. He indicated that if the government
sought to disenfranchise a group of its citizens it must place sufficient
information before the Court demonstrating what purpose the disenfranchisement
is intended to serve and to evaluate the policy considerations on which such
decision is based.
47. The petitioners do not demonstrate or motivate why they are of the view
that prisoners may not vote. This view however conflicts with the current
jurisprudence of the Constitutional Court on prisoner's right to vote.
The SAHRC to hold a referendum on the death penalty
48. The petitioners are of the view that the SAHRC should hold a referendum on
whether the death penalty should be reinstated.
49. As such the submission does not propose an amendment to the Constitution.
Furthermore, neither the Constitution nor legislation empowers the SAHRC to
hold such a referendum.
50. In the constitutional negotiations, the issue of whether the death penalty
should or should not be sanctioned by a Bill of Rights was not resolved and it
was left to the Constitutional Court to decide whether pre constitutional
legislation that made the death sentence a competent sentence for murder and
other crimes was consistent with provisions in the Bill of Rights.
51. In S v Makwanyane and Another 1995 (3) SA 391 (CC), the
Constitutional Court declared that the death penalty was unconstitutional. In
the main judgment, Chaskalson P (as he then was) held that the death penalty
was a violation of the fundamental right not to be subject to cruel, inhuman or
degrading form of punishment as protected in section 11 (2) of the interim
Constitution. This right is currently protected in section 12(1), which
provides that everyone has the right to freedom and security of the person,
which includes the right not to be treated or punished in a cruel, inhuman or
degrading way.
52. Notwithstanding that Chaskalson P based his' conclusion on section 11 (2),
he also examined the constitutionality of the death penalty in terms of the
right to life and the right to dignity. In this regard Chaskalson P held that
"[t]he rights to life and dignity are the most important of all human
rights, and the source of all other personal rights in chapter 3 of the interim
Constitution. By committing ourselves to a society founded on the recognition
of human rights we are required to value these two rights above all others. And
this must be demonstrated by the State in everything that it does, including
the way it punishes criminals. This is not achieved by objectifying murderers
and putting them to death to serve as an example to others in the expectation
that they might possibly be deterred thereby [paragraph 144].
53. Chaskalson P held further, U[i]n the balancing process the principal
factors that have to be weighed are, on the one hand, the destruction of life
and dignity that is a consequence of the implementation of the death sentence,
the elements of arbitrariness and the possibility of error in the enforcement
of capital punishment, and the existence of a severe alternative punishment
(life imprisonment) and, on the other, the claim that the death sentence is a
greater deterrent to murder, and will more effectively prevent its commission
than would a sentence of life imprisonment, and that there is a public demand
for retributive justice to be imposed on murderers, which only the death
sentence can meet... Retribution cannot be accorded the same weight under our
Constitution as the rights to life and dignity, which are the most important of
all the rights in chapter 3. It has not been shown that the death sentence
would be materially more effective to deter or prevent murder than the
alternative sentence of life imprisonment would be. Taking these factors into
account, as well as the elements of arbitrariness and the possibility of error
in enforcing the death penalty, the clear and convincing case that is required
to justify the death sentence as a penalty for murder has not been made
out." [paragraph 145 and 146]
54. In respect of public opinion Chaskalson P held "If public opinion were
to be decisive there would be no need for constitutional adjudication. The
protection of rights could then be left to Parliament, which has a mandate from
the public, and is answerable to the public for the way its mandate is
exercised, but this would be a return to parliamentary sovereignty, and a
retreat from the new legal order established by the 1993 Constitution. By the
same token the issue of the constitutionality of capital punishment cannot be
referred to a referendum, in which a majority view would prevail over the
wishes of any minority. The very reason for establishing the new legal order,
and for vesting the power of judicial review of all legislation in the courts,
was to protect the rights of minorities and others who cannot protect their
rights adequately through the democratic process. Those who are entitled to
claim this protection include the social outcasts and marginalised people of
our society. It is only if there is a willingness to protect the worst and the
weakest amongst us, that all of us can be secure that our own rights will be
protected" (paragraph 88).
55. As a direct consequence of the Makwanvane judgment, Parliament
passed the Criminal Law Amendment Act, No 105 of 1997, which abolished the
death penalty as a form of punishment.
56. Furthermore, on 28 November 2002, Parliament ratified the Second Optional
Protocol to the International Covenant on Civil and Political
Rights. Article 1 thereof provides that that no one within the jurisdiction of
a State Party to the present Protocol shall be executed. Furthermore, in terms
of Article 2 each State Party is obliged to take all necessary measures to
abolish the death penalty within its jurisdiction.
57. If the death penalty were to be reintroduced it would conflict with the Makwanyane
judgment, which held that the death penalty was, inter alia, a violation of
the right not to be subject to cruel, inhuman or degrading form of punishment
the freedom, the right to dignity and the right to life. This would in all
probability require amendments to all other provisions in the Bill of Rights,
for example, sections 9, 10 and 12, dealing with equality, human dignity and
freedom and security of the person respectively. It would also conflict with
South Africa's international law obligations.
The SAHRC should impose heavier sentences on offenders
58. The petitioners seem to be of the view that the SAHRC should impose heavier
sentences on convicted offenders. As such no specific amendment to the
Constitution is proposed.
59. It is also trite that the imposition of sentences is not a matter to be
dealt with by the SAHRC - it is either a matter regulated by Parliament in
terms of legislation or remains at the discretion of judges in terms of the
common law.
SUBMISSIONS ON THE COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS
OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES
The powers of the Commission must be extended to enable it to put a stop to
discrimination on the basis of cultural, religious and linguistic communities
60.ln terms of section 185(1) the primary objects of the Commission for the
Promotion and Protection of the Rights of Cultural, Religious and
Linguistic Communities (CRLC) are to promote respect for the rights of
cultural, religious and linguistic communities, to promote and develop peace,
friendship and national unity among cultural, religious and linguistic
communities on the basis of equality, non-discrimination and free association
and to recommend the establishment or recognition in accordance with national
legislation, of a cultural or other councilor councils for a community or
communities in South Africa. Section 185(2) further provides that the
Commission has the power, as regulated by national legislation, necessary to
achieve its primary objects, including the power to monitor, investigate,
research, educate, lobby advise and report on issues concerning the rights of
cultural, religious and linguistic communities.
61.ln terms of section 185(2) the CRLC may not itself investigate violations of
rights but may report any matter that falls within its powers and functions to
the SAHRC for investigation.
62. Whether or not the CRLC should be empowered in the manner suggested is of
course a political consideration.
63. Woolman and Soweto Aullo have however severely criticized the lack of power
of the CRLC. They indicate that that this weakness "reflects concerns
about its redundancy... Many MP's have expressed anxiety about the expenditure
of public funds on an entity that duplicates the functions of existing
institutions... the CRLC's questionable provenance, its lack of powerful
constituencies and its nominal independence give the government little
motivation to take the CRLC seriously" ('Commission for the Promotion and
Protection of the Rights of Cultural, Religious and Linguistic Communities' in Constitutional
Law of South Africa, Second Edition, p 24F-8-9).
64. Nevertheless, whether or not to empower the CRLC to perform such function
is a policy consideration.
The CRLC needs to be more visible and the public must be informed about the
rights of minorities
65. While the above submission is a matter of policy, such detail is not
usually included in the Constitution itself, but rather in legislation or policy
documents.
SUBMISSIONS ON THE AUDITOR-GENERAL
The Auditor-General must be empowered to act immediately against
perpetrators of fraud and not just to report on irregularities
66. The petitioners are of the view that the Auditor-General (AG) must be
empowered to act immediately against perpetrators of fraud and not just to
report on irregularities.
67. Section 188( 1) makes it clear that the function of the AG is to audit and
report on the accounts, financial statements and financial management of all
state departments and administrations, all municipalities and any other
institution or accounting entity so required by national or
provincial legislation. In terms of section 188(2) the AG may also audit other
state institutions that receive public monies for a public purpose.
68. In my view the task of the AG is to report on financial regularities and
report thereon to the relevant authorities. Thereafter it is the function of
the South African Police Services and the National Prosecuting Authority to act
on such information.
The AG must make concrete and practical recommendations to Parliament
69. The petitioners are of the view that the AG must make concrete
recommendations to Parliament.
70. Section 188(3), inter alia, already currently stipulates that the AG must
submit audit reports to any legislature that has a direct interest in the
audit.
71. As such I am of the view that such an amendment to the Constitution is
superfluous.
SUBMISSIONS ON THE ELECTORAL COMMISSIONS
The Electoral Commission must make more voting stations available, prescribe
more stringent regulations with regard to the registering of political parties
and become more visible
72. The petitioners are of the view that the Electoral Commission must make
more voting stations available, prescribe more stringent regulations with
regard to the registering of political parties and become more visible.
73. While the above is a matter of policy, such detail is not usually included
in the Constitution itself, but rather in legislation or policy documents.
SUBMISSIONS ON THE INDEPENDENT AUTHORITY TO REGULATE BROADCASTING
The IBA to promote locally produced programmes and design a cheaper and
shorter process to apply for a broadcasting licence to benefit smaller and
poorer communities
74. The petitioners are of the view that the Independent Authority (ISA) should
promote locally produced programmes and design a cheaper and shorter process to
apply for a broadcasting licence to benefit smaller and poorer communities.
75. Section 192 provides that national legislation must establish and
independent authority to regulate broadcasting in the public interest and to
ensure fairness and a diversity of views broadly representing South African
society. As such the draughters of the Constitution did not specify the
functions of the ISA.
76. While the submissions relate to matters of policy, in my view, such detail
is usually not included in the Constitution itself, but rather in legislation
or policies.
DATE: 8 August 2006
SUBJECT: Submission E by learners from Hendrik Verwoerd High, Tshwane to the
Joint Constitutional Review Committee
1. You requested that our Office assist the Joint Constitutional Review
Committee (the Committee) by evaluating the feasibility of submissions received
from members of the public "on specific sections of the Constitution that
they feel need to be reviewed".
2. In terms of your brief, submissions that deal with amendments to legislation
or policy matters and not to the Constitution itself are beyond the scope of
the Committee.
3. The petitioners have proposed changes to Chapter 9 of the Constitution
PROPOSED GENERAL AMENDMENTS TO CHAPTER 9
Chapter 9 Institutions need to be more accessible to the public, especially
the uneducated and the poor
4. Section 182(4) of the Constitution specifically provides that the Public
Protector "must be accessible to all persons and communities; . .
Furthermore section 181 (3) generally provides that other organs of state,
through legislative and other means, must assist and protect these Chapter 9
Institutions to ensure the independence, impartiality and effectiveness
of these institutions (my emphasis).
5. Thus apart from the Public Protector, there are no specific provisions in
the Constitution that require Chapter 9 Institutions to be accessible to the
public, especially those sectors that remain marginalized.
Irrespective of any other principles, members of Commissions should be
appointed purely on merit.
6. Section 193 stipulates that the Public Protector, the Auditor-General and
the members of any Commission established in terms of Chapter 9 must inter alia
be "fit and proper persons to hold the particular office" and must
comply with any other requirements prescribed by national legislation. In
addition, section 193(3) provides that the Auditor-General must have
specialised knowledge of, or experience in auditing, state finances and public
administration.
7. In accordance with section 193, the relevant national legislation specifies
additional qualifications of Commissioners. For example, section 6( 1) of the
Electoral Commission Act of 1996 stipulates that the Commission shall consist
of five members, one of whom shall be a judge. Furthermore section 6(5)
specifies that the selection panel must make recommendations with due regard to
a person's suitability, qualifications and experience.
8. Nevertheless, section 193(2) also requires that the Commissions must broadly
reflect the race and gender composition of South Africa.
9. While it is a matter of policy whether or not to amend the above provision,
Devenish indicates that the need for the Commissions to reflect broadly the
race and gender composition of South Africa "is essential to ensure that
they have legitimacy in the community at large" (LAWSA, Vol 5(3), Second Edition,
paragraph 303).
Another Chapter 9 Institution needs to be created to promote and safeguard
the rights of children and that such a body needs to report to Parliament twice
a year
10. The petitioners are of the view that another Chapter 9 Institution needs to
be created to promote and safeguard the rights of children and such a body
needs to report to Parliament twice a year.
11. Section 28 of the Bill of Rights specifically protects the rights of
children. Section 28(1), inter alia, provides that every child has the right to
a name and a nationality from birth, family care or parental care, or to
appropriate alternative care when removed from the family environment, basic
nutrition, shelter, basic health care services and social services, be protected
from maltreatment, neglect, abuse or degradation, protected from exploitative
labour practices, not be required or permitted to perform work or provide
services that are inappropriate for a person of that child's age or place at
risk the child's well-being, education, physical or mental health or spiritual,
moral or social development and not to be detained except as a measure of last
resort.
12. The inclusion in the Bill of Rights of a special section on the rights of
the child was an important development for South African children, some who
were detained without trial, tortured and assaulted while many faced
discrimination in healthcare, education and other areas. The Constitution
recognises that children need special protection because they are among the
most vulnerable members of society they are dependent on others - their parents
and families, or the state when these fail - for care and protection. As a
result, the drafters of our Constitution have made children's rights a priority
- and have stated that the best interests of a child are the overriding concern
when it comes to any matter affecting him or her (section 28(2». Despite the
aforementioned, there is no separate institution that protects the rights of
children.
13. Devenish (LAWSA, Vol 5(3), Second Edition, paragraph 302) indicates that in
order to promote the principles of democracy, freedom and equality on which the
Constitution is premised in a practical manner, the Constitution establishes
certain commissions and offices designed to provide meaningful support for the
system of constitutional democracy, open government and good governance
Accordingly these institutions are referred to as "State Institutions
Supporting Constitutional Democracy". As such I am of the view that it
would not be appropriate to locate a commission on children in Chapter 9.
14.lt must also be noted that since the entry into force of the United Nations
Convention on the Rights of the Child of 1989 (which South Africa ratified on
16 July 2005) a number of countries have incorporated children's rights into
their national constitutions.
15. Ultimately however, whether or not such a body needs to be created is a
matter of policy. However in terms of the above in my view it would not be
appropriate for such a body to be included as a Chapter 9 Institution.
Measures to ensure the impartiality of Chapter 9 Institutions need to be
included in the Constitution
16. Section 181 (1) and (2) of the Constitution provides that the
institutions listed in Chapter 9 of the Constitution "strengthen
constitutional democracy" and that these institutions "are
independent, and subject only to the Constitution and the law, and they must be
impartial and exercise their powers and perform their functions without fear,
favour or prejudice".
17. The independence of these institutions are further strengthened and
protected by section 181 (3), which provides that other organs of state,
through legislative and other measures, must assist and protect these
institutions to ensure the independence, impartiality, dignity and
effectiveness of these institutions. Furthermore section 181 (4) provides that
no person or organ of state may interfere with the functioning of these
institutions.
18. Section 194 further provides that Commissioners may be removed from office
on the grounds of misconduct, incompetence or incapacity, on a finding to that
effect by a committee of the National Assembly and the adoption of an Assembly
resolution calling for that person's removal.
19.As such measures to ensure the impartiality of the Chapter 9 Institutions
are already contained in the Constitution.
The public needs to be informed on an ongoing basis about Chapter 9
Institutions, their functions and how to contact them
20. While the above submission is a matter of policy, such detail is usually
not included in the Constitution itself, but rather in legislation or policy
documents.
Free quality mother tongue education
21. While I am unsure what the petitioner means by the above submission,
section 29(2) of the Bill of Rights provides that "[e]veryone has the
right to receive education in the official language or languages of their
choice in public educational institutions where that educational is reasonably
practicable. In order to ensure the effective access to, and implementation of,
this right, the state must consider all reasonable alternatives" including
single medium institutions taking into account equity, practicability, and the
need to redress the results of past racially discriminatory laws and practices.
22.As such the Constitution provides for the provision of mother tongue
education at state cost in terms of the guidelines set above. In addition,
section 29(3) provides that everyone also has the right to establish and
maintain at their own expense, independent institutions provided, inter alia,
that they do not discriminate on the basis of race and that they maintain
standards that are not inferior to standards at comparable public educational
institutions.
Replace the affirmative action criteria for the selection of Chapter 9
Institutions with an educational, training and skills criteria.
23. This submission is dealt with in paragraphs 6 to 9 above.
SUBMISSIONS ON THE PUBLIC PROTECTOR
Term of office
24. The petitioners are of the view that to reduce the possibility of the abuse
.of power by the Public Protector, the term of the Public Protector needs to be
reduced from 7 years to 5 years and that the incumbent may only serve 1 term.
25. Section 183 provides that the Public Protector is appointed for a
non-renewable period of 7 years.
26. While the decision whether or not the term of the Public Protector should
be reduced from 7 to 5 years is a matter of policy, in the
certification judgment the Constitutional Court did not regard the seven year term
of the Public Protector as problematic (Ex parte Chairperson of the
Constitutional Assembly: In re Certification of the Constitution of the
Republic of South Africa. 1996 (10) BCLR 1253 (CC) at paragraph 161-3).
The powers of the Public Protector need to be extended to review court
decisions
27.Section 182(3) stipulates that the Public Protector may not investigate
court decisions. This provision is consistent with section 165 of the
Constitution which vests the judicial authority of the Republic in the courts
and provides that the courts are independent, subject only to the Constitution
and the law, which they must apply impartially without fear, favour or
prejudice. Furthermore, section 165(3) stipulates that no person or organ of
state may interfere with the functioning of the courts.
28.As such an amendment to the Constitution in the manner suggested by the
petitioner would conflict with section 165. It would also have a major impact
on the impartiality of the courts and the separation of powers implied in our
Constitution.
The Public Protector must report to Parliament regularly and make
recommendations
29. Section 182(5) provides that all Chapter 9 Institutions are accountable to
the National Assembly and must report on their activities and the performance
of their functions to the Assembly at least once a year.
30.ln addition section 182, inter alia, provides that the Public Protector has
the power to investigate any conduct in state affairs that is alleged or
suspected to be improper or to result in any impropriety or prejudice, to
report on that conduct and to take appropriate remedial action.
31. While the Constitution does not specify the remedial action that must be
taken, section 6(4)(c) of the Public Protector Act inter alia provides that at
a time prior to, during or after an investigation, if the Public Protector is
of the opinion that the facts disclose the commission of an offence by any
person, he or she may bring the matter to the notice of the authority charged
with prosecutions. Furthermore he or she may make an appropriate recommendation
regarding the redress of the prejudice resulting therefrom or make any other
appropriate recommendation he or she deems expedient to the affected public
body or authority.
32. Bishop and Woolman ('The Public Protector" in Constitutional Law of
South Africa, Second Edition, p 24A-15-16) observed that in practice, the
Public Protector's primary means of responding to a complainant's legitimate
grievance has been to refer the matter to the appropriate public body and to
make a recommendation to that body as the appropriate form of redress.
33. While it is a matter of policy whether or not to incorporate the suggestion
of the petitioners into the Constitution, I am of the view that the suggested
amendment will not confer any additional benefits or protection or enhance the
functioning of the Public Protector.
The Public Protector must devise mechanisms to shorten legal processes
34. The petitioners are of the view that the Public Protector must devise mechanisms to shorten legal processes.
35. While section 182(3) does not permit the Public Protector to investigate
court decisions, the Public Protector may investigate complaints relating to
delays in judicial decision-making (see Bishop and Woolman, p 24A-10).
36. While the proposal is a matter of policy, in my view, this function is not
consistent with the role of the Public Protector who is tasked with
investigating conduct in state affairs or in the public administration in any
sphere of government that is alleged or suspected to be improper to result in
any impropriety or prejudice
SUBMISSIONS ON THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION (SAHRC)
THE SAHRC must report regularly to Parliament with regard to progress in
providing basic services such as health, housing, water and sanitation
37. Section 184(3) currently provides that each year the SAHRC must require
relevant organs of state to provide it with information on the measures they
have taken towards the realisation of the rights in the Bill of Rights
concerning housing, health care, food, water, social security, education and
the environment.
38.ln addition section 181 (5) stipulates that the SAHRC is accountable to the
National Assembly and must report on their activities and the performance of
their functions to the Assembly at least once a year.
39. Whether or not the SAHRC should also be provided with information on the
measures taken in respect of housing and sanitation is a matter of policy.
The SAHRC to promote respect for all peoples regardless of their religious
conviction or their lack thereof
40. Section 184(1), inter alia, stipulates that the SAHRC must promote respect
for human rights and a culture of human rights as well as promote the
protection, development and attainment of human rights. This would include the
promotion of the rights contained in section 15( 1 ) which provides that
everyone has the right to freedom of conscience, religion, thought, belief and
opinion.
41. Additionally, section 184(2) also provides that the SAHRC may also
investigate and report on the observance of human rights and take steps to
secure appropriate redress where human rights have been violated.
42.As the Constitution already stipulates that the SAHRC must promote the
rights contained in the Bill of Rights, there is thus no need to specifically
promote the rights contained in section 15.
Prisoners should loose their right to vote
43. The petitioners are of the view that prisoners must loose their right to
vote.
44.ln my view the rights of prisoners to vote are unrelated to the functioning
of the SAHRC except in so far as a prisoner who is not allowed to vote may
lodge a complaint with the SAHRC.
45. The issue of prisoners' rights to vote was before the Constitutional Court
on two occasions. In August and Another v Electoral Commission and Others
1999 (3) SA 1 (CC), the Constitutional Court indicated that section 1 (d),
a founding provisions of the Constitution, provides South Africa is, inter
alia, founded on the value of universal adult suffrage and a national common
voters roll. Furthermore the Court pointed out that section 19(3)(a) went
further by guaranteeing that every adult citizen has the right to vote in
elections for any legislative body established in terms of the Constitution,
and to do so in secret. The court stated that unlike the interim Constitution,
section 19 does not contain any provisions that allow for disqualifications
from voting to be prescribed by law. Accordingly, the Court held that if
Parliament seeks to limit the unqualified right of adult suffrage it may do so
only by an amendment to the Constitution.
46.ln Minister of Home Affairs v NICRO and Others 2004 (5) BCLR 445 (CC), the
Constitutional Court declared that certain provisions of the Electoral Act to
be unconstitutional as it deprived prisoners serving a sentence of imprisonment
without the option of a fine of the right to register and vote in elections. Chaskalson
CJ, writing for the majority, highlighted the fact that, given the history of
disenfranchisement in South African, the right to vote occupies a special place
in our democracy and that any limitation of this right must be supported by
clear and convincing reasons. He indicated that if the government sought to
disenfranchise a group of its citizens it must place sufficient information
before the Court demonstrating what purpose the disenfranchisement is intended
to serve and to evaluate the policy considerations on which such decision is
based.
47. The petitioners do not demonstrate or motivate why they are of the view
that prisoners may not vote. This view however conflicts with the current
jurisprudence of the Constitutional Court on prisoner's right to vote.
The SAHRC to hold a referendum on the death penalty
48. The petitioners are of the view that the SAHRC should hold a referendum on
whether the death penalty should be reinstated.
49.As such the submission does not propose an amendment to the Constitution.
Furthermore, neither the Constitution nor legislation empowers the SAHRC to
hold such a referendum.
50. In the constitutional negotiations, the issue of whether the death penalty
should or should not be sanctioned by a Bill of Rights was not resolved and it
was left to the Constitutional Court to decide whether pre constitutional
legislation that made the death sentence a competent sentence for murder and
other crimes was consistent with provisions in the Bill of Rights.
51.ln S v Makwanyane and Another 1995 (3) SA 391 (CC), the
Constitutional Court declared that the death penalty was unconstitutional. In
the main judgment, Chaskalson P (as he then was) held that the death penalty
was a violation of the fundamental right not to be subject to cruel, inhuman or
degrading form of punishment as protected in section 11 (2) of the interim
Constitution. This right is currently protected in section 12(1), which
provides that everyone has the right to freedom and security of the person,
which includes the right not to be treated or punished in a cruel, inhuman or
degrading way.
52. Notwithstanding that Chaskalson P based his conclusion on section 11 (2),
he also examined the constitutionality of the death penalty in terms of the
right to life and the right to dignity. In this regard Chaskalson P held that
"[t]he rights to life and dignity are the most important of all human
rights, and the source of all other personal rights in chapter 3 of the interim
Constitution. By committing ourselves to a society founded on the recognition
of human rights we are required to value these two rights above all others. And
this must be demonstrated by the State in everything that it does, including
the way it punishes criminals. This is not achieved by objectifying murderers
and putting them to death to serve as an example to others in the expectation
that they might possibly be deterred thereby [paragraph 144].
53. Chaskalson P held further, "[i]n the balancing process the principal
factors that have to be weighed are, on the one hand, the destruction of life
and dignity that is a consequence of the implementation of the death sentence,
the elements of arbitrariness and the possibility of error in the enforcement
of capital punishment, and the existence of a severe alternative punishment
(life imprisonment) and, on the other, the claim that the death sentence is a
greater deterrent to murder, and will more effectively prevent its commission
than would a sentence of life imprisonment, and that there is a public demand for
retributive justice to be imposed on murderers, which only the death sentence
can meet... Retribution cannot be accorded the same weight under our
Constitution as the rights to life and dignity, which are the most important of
all the rights in chapter 3. It has not been shown that the death sentence
would be materially more effective to deter or prevent murder than the
alternative sentence of life imprisonment would be. Taking these factors into
account, as well as the elements of arbitrariness and the possibility of error
in enforcing the death penalty, the clear and convincing case that is required
to justify the death sentence as a penalty for murder has not been made
out." [paragraph 145 and 146]
54. In respect of public opinion Chaskalson P held "If public opinion were
to be decisive there would be no need for constitutional adjudication. The
protection of rights could then be left to Parliament, which has a mandate from
the public, and is answerable to the public for the way its mandate is exercised,
but this would be a return to parliamentary sovereignty, and a retreat from the
new legal order established by the 1993 Constitution. By the same token the
issue of the constitutionality of capital punishment cannot be referred to a
referendum, in which a majority view would prevail over the wishes of any
minority. The very reason for establishing the new legal order, and for vesting
the power of judicial review of all legislation in the courts, was to protect
the rights of minorities and others who cannot protect their rights adequately
through the democratic process. Those who are entitled to claim this protection
include the social outcasts and marginalised people of our society. It is only
if there is a willingness to protect the worst and the weakest amongst us, that
all of us can be secure that our own rights will be protected" (paragraph
88).
55.As a direct consequence of the Makwanvane judgment, Parliament passed
the Criminal Law Amendment Act, No 105 of 1997, which abolished the death
penalty as a form of punishment.
56. Furthermore, on 28 November 2002, Parliament ratified the Second Optional
Protocol to the International Covenant on Civil and Political
Rights. Article 1 thereof provides that that no one within the jurisdiction of
a State Party to the present Protocol shall be executed. Furthermore, in terms
of Article 2 each State Party is obliged to take all necessary measures to
abolish the death penalty within its jurisdiction.
57. If the death penalty were to be reintroduced it would conflict with the Makwanvane
judgment, which held that the death penalty was, inter alia, a violation of
the right not to be subject to cruel, inhuman or degrading form of punishment
the freedom, the right to dignity and the right to life. This would in all probability
require amendments to all other provisions in the Bill of Rights, for example,
sections 9, 10 and 12, dealing with equality, human dignity and freedom and
security of the person respectively. It would also conflict with South Africa's
international law obligations.
The SAHRC should impose heavier sentences on offenders
58. The petitioners seem to be of the view that the SAHRC should impose heavier
sentences on convicted offenders. As such no specific amendment to the
Constitution is proposed.
59. It is also trite that the imposition of sentences is not a matter to be
dealt with by the SAHRC - it is either a matter regulated by Parliament in
terms of legislation or remains at the discretion of judges in terms of the
common law.
SUBMISSIONS ON THE COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS
OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES
The powers of the Commission must be extended to enable it to put a stop to
discrimination on the basis of cultural, religious and linguistic communities
60.ln terms of section 185(1) the primary objects of the Commission for the
Promotion and Protection of the Rights of Cultural, Religious and Linguistic
Communities (CRLC) are to promote respect for the rights of cultural, religious
and linguistic communities, to promote and develop peace, friendship and
national unity among cultural, religious and linguistic communities on the
basis of equality, non-discrimination and free association and to recommend the
establishment or recognition in accordance with national legislation, of a
cultural or other council or councils for a community or communities in South
Africa. Section 185(2) further provides that the Commission has the power, as
regulated by national legislation, necessary to achieve its primary objects,
including the power to monitor, investigate, research, educate, lobby advise
and report on issues concerning the rights of cultural, religious and
linguistic communities.
61.ln terms of section 185(2) the CRLC may not itself investigate violations of
rights but may report any matter that falls within its powers and functions to
the SAHRC for investigation. ,
62. Whether or not the CRLC should be empowered in the manner suggested is of
course a political consideration.
63. Woolman and Soweto Aullo have however severely criticized the lack of power
of the CRLC. They indicate that that this weakness "reflects concerns
about its redundancy... Many MP's have expressed anxiety about the expenditure
of public funds on an entity that duplicates the functions of existing
institutions... the CRLC's questionable provenance, its lack of powerful
constituencies and its nominal independence give the government little
motivation to take the CRLC seriously" ('Commission for the Promotion and
Protection of the Rights of Cultural, Religious and Linguistic Communities in
Constitutional Law of South Africa, Second Edition, p 24F-8-9).
64. Nevertheless, whether or not to empower the CRLC to perform such function
is a policy consideration.
The CRLC needs to be more visible and the public must be informed about the
rights of minorities
65. While the above submission is a matter of policy, such detail is not
usually included in the Constitution itself, but rather in legislation or
policy documents.
SUBMISSIONS ON THE AUDITOR-GENERAL
The Auditor-General must be empowered to act immediately against
perpetrators of fraud and not just to report on irregularities
66. The petitioners are of the view that the Auditor-General (AG) must be
empowered to act immediately against perpetrators of fraud and not just to
report on irregularities.
67. Section 188(1) makes it clear that the function of the AG is to audit and
report on the accounts, financial statements and financial management of all
state departments and administrations, all municipalities and any other
institution or accounting entity so required by national or
provincial legislation. In terms of section 188(2) the AG may also audit other
state institutions that receive public monies for a public purpose.
68.ln my view the task of the AG is to report on financial regularities and
report thereon to the relevant authorities. Thereafter it is the function of
the South African Police Services and the National Prosecuting Authority to act
on such information.
The AG must make concrete and practical recommendations to Parliament
69. The petitioners are of the view that the AG must make concrete
recommendations to Parliament.
70. Section 188(3), inter alia, already currently stipulates that the AG must
submit audit reports to any legislature that has a direct interest in the
audit.
71.As such I am of the view that such an amendment to the Constitution is
superfluous.
SUBMISSIONS ON THE ELECTORAL COMMISSIONS
The Electoral Commission must make more voting stations available, prescribe
more stringent regulations with regard to the registering of political parties
and become more visible
72. The petitioners are of the view that the Electoral Commission must make
more voting stations available, prescribe more stringent regulations with
regard to the registering of political parties and become more visible.
73. While the above is a matter of policy, such detail is not usually included
in the Constitution itself, but rather in legislation or policy documents.
SUBMISSIONS ON THE INDEPENDENT AUTHORITY TO REGULATE BROADCASTING
The IBA to promote locally produced programmes and design a cheaper and
shorter process to apply for a broadcasting licence to benefit smaller and
poorer communities
74. The petitioners are of the view that the Independent Authority (IBA) should
promote locally produced programmes and design a cheaper and shorter process to
apply for a broadcasting licence to benefit smaller and poorer communities.
75. Section 192 provides that national legislation must establish and
independent authority to regulate broadcasting in the public interest and to
ensure fairness and a diversity of views broadly representing South African
society. As such the draughters of the Constitution did not specify the
functions of the IBA.
76. While the submissions relate to matters of policy, in my view, such detail
is usually not included in the Constitution itself, but rather in legislation
or policies.
DATE: 03 August 2006
SUBJECT: Annual review of the Constitution: Section
23(2)(c) of the Bill of Rights
LEGAL ADVISER: ADV A J GORDON
1. The Rand Water stakeholders propose inserting a section 38 into the Bill of
Rights that defines and lists “essential services”. Also, that section 23 of
the Bill of Rights should be aligned with the wording of the labour Relations
Act, 1995 (LRA).
2. Their proposed clause reads as follows:
“23(2)(c)
(i) The right to strike is fully applicable to all non-essential service
companies/organizations and;
(ii) The right to strike is fully applicable to essential service companies/organizations through a minimum
service agreement that spell-out (sic) the right to strike.
3. An "essential service" is defined in section 213 of the LRA as,
"(a) a service the interruption of which endangers the life, personal;
safety or health of the whole or nay part of the population;
(b) The Parliamentary Service;
(c) The South African Police Services;".
4. According to Rand Water, the definition of "essential service" in
section 21 3 of the LRA is confusing and should be clearly defined in the
Constitution.
5. In terms of section 65(1 )(d)(i) of the LRA no person may take part in a
strike if that person is engaged in an essential service. From the above it
would purport that persons engaged in an essential service are completely
prohibited from participating in a protected strike. However, in terms of
section 72 of the LRA the essential services committee may ratify any
collective agreement that provides for the maintenance of minimum services in a
service that is designated as an essential service. Where such a collective
agreement is in place, the minimum service that the parties agreed to will be
considered to be the "essential service" and not the "essential
service" as designated.
6. The effect of section 72 is to afford the right to strike to the employees
of an essential service that are not required to render the minimum service.
7. It is common cause that the rights contained in the Bill of Rights may be
limited and that certain constitutional provisions are elucidated in
legislation. The LRA elucidates section 23 of the Constitution and in certain
instances justifiably limits certain rights contained in section 23 of the
Constitution.
8. I am of the opinion that the proposal presented by Rand Water is already
captured in various sections of the LRA. However, if Rand Water thinks it
prudent that the applicable sections be reworded along the lines that they
propose, I am of the opinion that such rewording would best be placed in the
LRA and not the Constitution.
DATE: 8 August 2006
SUBJECT: Annual review of the Constitution: Floor-crossing
LEGAL ADVISERS: Adv F S Jenkins
1. The submission from IDASA argues that the system provided for in the
Constitution relating to retention of membership of the National Assembly or a
provincial legislature, after a change of party membership, merges between
parties, subdivision of parties and subdivision and merger of parties
(so-called floor-crossing provisions in Schedule 6A), "in the context of
[an] (sic) electoral system premised on proportional representation, has had
the unintended effect of undermining the spirit of open, accountable,
transparent and participatory democracy as prescribed by the
Constitution".
2. The submission argues that floor-crossing is a feature of many so-called
"established" and "developing" democracies, but that such
an observation cannot serve as a justification for the regime as practiced in
South Africa. In essence it is submitted that each occurrence of floor-crossing
must be examined "according to the electoral system within which it is
practiced and, in turn, its legal manifestation and legal application where it
occurs." Its salient points are:
·
Proportional representation of voters following national and provincial
elections are distorted by floor-crossing and subsequent elections showed that
the effects of floor-crossing did not channel public opinion. As such
floor-crossing undermines participatory democracy as there is a lack of
accountability to voters.
·
Floor-crossing affects smaller parties disproportionately compared to
larger parties due to the operation of the ten percent threshold.
·
The establishment of new smaller parties due to floor-crossing has a
substantial impact on the provision of public money to political parties.
·
Data suggests that public opinion disapproves floor-crossing, which is
the cause of voter apathy.
·
Floor-crossing stifles debate within political parties as it is easier to
jump ship than to engage constructively with colleagues.
·
"The contradictions arising at the intersection of a proportional
representation, party list electoral system and floor-crossing, as currently
legislated, indicate the need for either electoral reform, or the reform or
scrapping of floor-crossing."
3. The issue concerns the merits and demerits of the constitutional provisions
relating to floor-crossing. As the Constitutional Court pointed out in its
judgment UDM v President of the RSA and Others (1) [2002 (11) BCLR 1179 (CC) at
para 11], this is a political question. From a constitutional perspective, the
Constitutional Court found that floor-crossing provisions are not inconsistent
with the founding values set out in section 1 of the Constitution [para 18];
with multi-party democracy [paras 23 - 27]; or with proportional representation
[paras 28 - 35]. The Court also dismissed the argument that the threshold of 10
per cent could operate to the prejudice of smaller parties, as this was
consistent with the Constitution [para 47]. On the issue of accountability to
voters, the Court remarked broadly that such "remedy comes at the time of
the next election", as the Constitution does not provide for voters to
dictate to representatives how they must vote in Parliament or how they must
conduct themselves or refrain from conducting themselves in a particular manner
[para 49 and 50]. On the issue of funding, the Court, whilst finding no
inconsistency with the Constitution, deliberately refrained from expressing a
view [para 52].
4. Whereas the Constitutional Court considered the above arguments and was not
persuaded to find that floor-crossing is inconsistent with the Constitution
based on these arguments. the Constitutional Review Committee is now asked to
consider the appropriateness or the merits and demerits of the provisions. as
they now stand.
5. It is thus a matter of policy. It can be mentioned that the Constitution
Fifteenth Amendment Bill. a private member's legislative proposal concerning
floor-crossing has been referred to the Standing Committee on Private Members'
Legislative Proposals and Special Petitions by the Speaker (A TC. 11 April
DATE: 8 August 2006
SUBJECT: Annual review of the Constitution: Composition of provincial
legislatures
LEGAL ADVISERS: Adv F S Jenkins
1. The Free State Legislature requests a review of section 105(2) of the
Constitution, relating to the number of seats in a provincial legislature.
2. The motivation of the Free State Legislature is based on the fact that its
membership is only 30, the minimum number of members allowed by section 105(2).
However, the effective membership to perform oversight, consider legislation
and ensure public participation is 17 as the Premier, 10 Members of the
Executive Council, the Speaker and Deputy Speaker do not participate in the
daily programme relating to these functions although they are members of the
legislature. The Free State Legislature refers to the following factors in
support of its submission:
·
the geographical area of the province;
·
municipal councils are allowed more members;
·
each province is allowed a delegation of 10 members to the NCOP,
irrespective of its geographical area; and
·
as the. population size of a province is in constant flux, the formula
based on the national census conducted every 10 years appears to be arbitrary.
3. As indicated in the submission, section 105(2) of the Constitution provides
that a provincial legislature consists of between 30 and 80 members, as
determined in terms of a formula prescribed by national legislation. Pursuant
hereto, item 2 of Schedule 3 to the Electoral Act, 1998 provides as follows:
2. Formula for determining number of members of provincial legislatures. - By
taking into account available scientifically based data and representations by
interested parties, the number of seats of a provincial legislature must be
determined by awarding one seat for every 100 000 of the population whose
ordinary place of residence is within that province, with a minimum of 30 and a
maximum of 80 seats.
4. In considering the submission, it is useful to note that section 132 of the
Constitution requires an Executive Council to "consist of no fewer than
five and no more than ten members ... from among the members of the provincial
legislature.» Furthermore, as is clear from item 2 quoted above, the Electoral
Act allows the views of interested parties to be taken into account in
determining the population whose ordinary place of residence is within that
province.
5. Be that as it may, the Constitutional Review Committee has, in my opinion,
at least two options in responding to the submission. It can either consider
redrafting section 105(2) to ensure that the geographical size of a province
plays a role in determining the number of seats in a provincial legislature;
or, alternatively, advise the legislature that its concerns are best addressed
to the Department of Home Affairs in aid of amending item 2 of Schedule 3 to
the Electoral Act.
Adv F S Jenkins: Parliamentary Legal Adviser