REPORT OF THE JOINT CONSTITUTIONAL
REVIEW COMMITTEE IN TERMS OF SECTION 45(1)(C) OF THE CONSTITUTION FOR 2007 DATED 20 JUNE 2008
Section 45(1)(c) of
the Constitution provides that the Joint Constitutional Review Committee (the
Committee) must review the Constitution at least once annually.
In giving effect to section 45(1)(c), the Committee
placed an advertisement in the media in
April 2007 in which it invited members of the
public to make submissions that propose amendments to the Constitution. The Committee
made a call for submissions generally on any area of the Constitution but also
specifically encouraged the public to make submissions on the role, powers and
functions of the three (3) spheres of government.
In total, eleven (11) submissions were received from the public, ten (10) of
the eleven (11) submission were received within the allocated time and one (1)
was received after the closing date.
The Committee requested the Parliamentary Legal Services Office to consider the
various submissions that proposed amendments to the Constitution in the light
of current constitutional jurisprudence.
Hereunder are brief summaries of the submissions received and the Committees
views and recommendations thereon.
A: SUBMISSION BY THE COMMISSION FOR THE
PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC
COMMUNITIES AND PANSALB – ERRONOUS DESIGNATION OF SEPEDI AS AN OFFICIAL
LANGUAGE
The Commission for the Promotion and Protection of the Rights of Cultural,
Religious and Linguistic Communities (“CRL Rights Commission”) and PanSALB
submitted that Sepedi, which has been designated as one of the official
languages in section 6(1) of the Constitution is but a dialect within the
general language that is Sesotho sa Leboa. They submitted that the designation
in the Constitution should be the latter as opposed to Sepedi since the use of
Sepedi elevates above all the other dialects within the language.
Recommendation
The Committee agreed that public hearings should be initiated in the
B: SUBMISSION BY THE NATIONAL ENERGY REGULATOR OF
The National Energy Regulator of South Africa (“Nersa”) and EDI Holdings
submitted that electricity and gas reticulation should be a national competence
to allow national government to regulate the provision of electricity and gas
to avoid power outages which are a result of poor maintenance.
Recommendation
The Committee agreed that the Department of Minerals and Energy (DME) and the
Department of Provincial and Local Government (DPLG) should provide a speedy
response on the issue. If necessary, NERSA and EDI Holdings would be called to
address the Committee.
C: SUBMISSIONS BY SOUTH AFRICAN VETERINARY ASSOCIATION - ANIMAL HEALTH AND MEAT
SAFETY ISSUES AS A NATIONAL COMPETENCE
South African Veterinary Association (
They allege that a fundamental problem is the fact that the Constitution does
not give the national Department of Agriculture, the national department
responsible for animal health, the authority over the provincial government and
provincial veterinary services in turn. They further argue that “provincialisation”
is counter-productive to disease surveillance and management and meat safety
issues.
Recommendation
The Committee agreed that the Department of Agriculture and Department of
Provincial and Local Government should provide an opinion on the matter.
Further that the Committee would invite the Department and Ministry of
Provincial and Local Government to brief it on the provincial review of powers
and functions of provinces.
D: SUBMMISSION BY THE PALMER DEVELOPMENT GROUP – BUILT ENVIRONMENT
Palmer Development
Group (“PDG”) submitted that housing, which is a provincial competence, should
be a local government competence since municipalities are responsible for
housing and, indeed because the municipalities are responsible for planning,
land use management and infrastructure and as such control key elements of the
housing process.
They argue further that by assigning public transport to provinces and
municipal public transport to local government, the Constitution creates a
problem of major proportions which has resulted in duplication, conflict and
inefficiency. They conclude that the functional area of public transport should
be devolved to local government, at least in the metropolitan areas as the need
is less severe outside the metropolitans. They state that the best way of doing
this is through changes to Schedules 4 and 5 of the Constitution, alternatively
an assignment of functions needs to be made by the Minister of Provincial and
Local Government.
PDG finally submits that one of the areas of confusion in respect of Schedule
4A functions has been that whilst the Constitution lists these functions as
areas of concurrent legislative competence, it does not specify who is
responsible for the implementation of the function.
Recommendation
No recommendation was made in this respect.
E: SUBMISSION BY DR MARGARET NASH –
PUBLIC LIBRARIES
Dr Nash in her
submission claims that “in the absence of other information”, she assumes that
“Cultural matters” in Schedule 4 Part A of the Constitution includes Public
Libraries and that in areas of concurrent legislative competence, national
government has primary responsibility to ensure that gaps in the provision of
the relevant services are addressed. Dr Nash proposes that the Joint
Constitutional Review Committee establish a Task Team to deal with the
following questions:
Who should provide and administer Public Libraries?
How should they be budgeted for?
If municipalities that have run public libraries in the past are willing and
able to continue, to whom should they apply for recognition and resources?
How can “overlaps” be reduced and scarce resources optimally employed?
What is our vision for libraries/information centres as essential building
blocks in creating social capital?
With regards to “overlaps” in (d) above, she offers an example of three
libraries within one square kilometre in the Mowbray area. Her vision in
creating social capital is what she refers to as a need for our schools to
become Centres of Lifelong Learning and Social Development.
The Committee requested the secretary to find the response from a submission
which was forwarded to the Department of Arts and Culture (before 2004) on a
similar matter – this would guide the Committee on this issue.
Recommendation
No recommendation was made in this respect.
F: SUBMISSION BY MR JOHANN VERHEEM – CONSUMER RIGHTS
In his submission, Mr Verheem alleges that consumer interests and rights are
not properly provided for in the Constitution. He recommends that a provision
for consumer rights should be inserted in the Constitution.
Recommendation
No recommendation was made in this respect.
G: SUBMISSION BY MR O MNDAI
Much of Mr Mndai’s submission is unclear. He however, requests the Joint
Committee to modify section 127(2)(f), which states
that “The Premier of a province is responsible for calling a referendum in the
province in accordance with national legislation” and section 143 (2)(a) of the
Constitution, which provides that “Provisions included in a provincial
constitution or constitutional amendment in terms of paragraphs (a) or (b) of
subsection (1) must comply with the values in section 1 and with Chapter 3…” He
argues that such a consideration must be premised on the increase in the
population and its influence on cultural material autonomy (devolution of
powers and functions to provincial monarchy).
Recommendation
No recommendation was made in this respect.
H: SUBMISSION BY MR LESIBA JACOB MOLEKOA – LAND AND MINES IN
Mr Molekoa submitted that the Constitution is responsible for the “mess” the
poor community is in. He states that the country’s mining laws allow companies
access for mining purposes without proper consultation and fair compensation to
land owners. He cites an example of the poor community of Mhlotlo in the
Recommendation
No recommendation was made in this respect.
I: SUBMISSIONS BY MR U B LEBBREINDT –
UNEQUAL TREATMENT OF SOUTH AFRICANS
Mr Lebbreindt does not propose any amendment(s) to the Constitution but
expresses unease about the unequal treatment of South Africans. He refers to
the differentiation in vehicle licence fees in the different provinces. He
refers to the
Recommendation
No recommendation was made in this respect.
J: SUBMISSION BY THE COMMUNITY LAW CENTRE – FUNCTIONS OF LOCAL GOVERNMENT
The Community Law Centre (“CLC”) submitted that there is a mismatch
between the functions of local government as set out in the Schedules 4B and 5B
and its developmental mandate. They submitted that the Constitution should be
amended to align local government functional areas with its developmental
mandate. CLC focused in this respect on four (4) functional areas specifically,
housing, transport, land use planning and local
economic development. CLC stated that possible ways of aligning the
developmental mandate and functional areas are revisiting the Schedules and
adjusting powers and functions through assignments.
Recommendation
No recommendation was
made in this respect.