Report of the Constitutional Review
Committee On 2009 Public Submissions
1. Introduction
In
terms of section 45 of the Constitution,
Parliament has to establish a joint committee to review the Constitution at
least annually.
In
giving effect to this provision, the Constitutional Review Committee placed
advertisements in the media on 17, 18 and 19 July 2009 inviting public
submissions regarding changes to the Constitution. In all, 15 submissions were received.
The
Committee requested the Parliamentary Legal Services office to consider each of
the submissions in the light of current jurisprudence.
Hereunder
are brief summaries of the submissions of the public, as well as the
Committee’s views and its recommendations.
2.
Summaries
of public submissions
Submission
1 by Mr Jerome Veldsman
The
submitter suggests that “the value of human dignity, the achievement of
equality and the advancement of human rights and freedoms” require that “the
Constitution ought to be sanitised of bias in favour of religious persons to
the disadvantage of persons who do not hold supernatural or deity
beliefs.” He proposes the review of
sections 6(5)(b)(ii),15(2), 16(2)(c), 35(2)(f)(iii), the first item in the
Table of Non-Derogable Rights in section 37, and Schedule 2 of the
Constitution.
Section 6(5)(b)(ii)
Section
6 (5) (b) (ii) requires that the Pan-South Africa Language Board (Pansalb)
“promote and ensure respect for Arabic, Hebrew, Sanskrit and other languages
for religious purposes in
The
Committee feels that the suggestion that section 6 (5)(b)(ii) be deleted would
not be necessary. The rule which the
submitter uses as a premise; namely, the rule of separation of state and church
is not part of South African constitutional jurisprudence.
Conclusion
The
Committee is of the opinion that the proposal made does not warrant a review of
the Constitution.
Section
15(2),
Mr
Veldsman argues that the provision in section 15(2), which allows “religious
observances” at state or state-aided institutions, is logically
inconsistent. He submits that the
practice at any state or state–aided institutions is to integrate religious
observances into meetings where attendance is not free and voluntary. Further he holds that the national policy on religion
and education is “intellectually dishonest” in its provision that pupils may be
excused on grounds of conscience from attending a religious observance
component. He suggests that the
inclusion of sub-clause (d) to section 15(2) in order to provide that “no religious
observances may be conducted at state or state-aided institutions at any
meeting or activity at which attendance is not free and voluntary”.
The
Committee acknowledges that the argument by Mr Veldsman is a constitutional
matter. However, it is of the view that
the suggestion is tautologous, as section 15(2) (c) already provides for
this. Furthermore, the Constitution is
not opposed to religion, but values the role it plays in the society.
Conclusion
The
Committee is of the opinion that the submission does not warrant a Constitutional
amendment.
Section
16 (2) (c),
Mr
Veldsman suggests that section 16 (2) (c), which provides that “the right to
freedom of expression dose not extend to advocacy of hatred that is based on
race, ethnicity, gender or religion, and that constitutes incitement to cause harm”
is deficient, as it does not include the full ambit of human contemplation. He argues that advocacy of hatred based on
conscience, thought, belief and opinion is as repulsive as the advocacy of hatred
based on religion. He suggests that the
omission of these words in section 16(2)(c) might even be construed as permitting
advocacy of hatred based on conscience.
He therefore suggests that the terminology used in section 15, namely: “conscience,
thought, belief and opinion” should be included in section 16(2) (c).
The
Committee is of the view that section 16(2)(c) circumscribes the right to
freedom of expression. However,
developing the inherent limitation contained in section 16(2)(c), as suggested
by the submitter, would limit the right to freedom of expression..
Conclusion
The
Committee is of the opinion that the suggestion by the submitter is a policy matter
and does not warrant any review of the Constitution.
Section
35(2)(f)(iii)
Mr
Veldsman argues that there is no logical or rational reason to restrict the
nature of counselling in section 35(2)(f)(iii), which permits everyone who is
detained , including every sentenced prisoner, to communicate with, and be
visited by, the persons “chosen religious counsellor”. He suggests that section 35 (2)(f)(iii) ought
to be amended by omitting the word “religious” and substituting it with the
insertion of the word “contemplation”.
The
Committee, in deciding on its position on this matter, considered the approach
of the
Conclusion
The
Committee is of the opinion that there is no need to amend section
35(2)(f)(iii), if the view of the
Table
of Non-Derogable Rights found in section 37
Me
Veldsman argues that there exists no logical or rational reason to distinguish
between the protection of the right to equality “with respect to unfair
discrimination solely on grounds of …religion” in the first item in the Table
of Non-Derogable Rights found in section 37, from “any derogation “ under a
state of emergency, and contemplation that does not include supernatural/deity
beliefs. He therefore suggests that the
word “religion” be replaced with the words “conscience, religion, thought,
belief and opinion”.
The
Committee does not agree with the proposal of replacing the word “religion”
with “conscience, thought, belief and opinion”.
Developing the non-derogable rights as suggested by the submitter would
allow less scope to achieve the aims of the state of emergency, which is to
restore peace and order. The Committee
views this as a policy matter that does not warrant a review of the
Constitution.
He
further argues that the inclusion of the words “(In the case of an oath: So
help me God.)” in the oaths found in Schedule 2 is not necessary and contradicts
the
The
Committee is of the view that the approach applied in the two cases, namely Christian Education South Africa v Minster
of Education (2000 (10) BCLR 1051 (CC) at par [36 ] and Minister
of Home Affairs and Another v Fourie and Others; Lesbian and Gay Equality
Project and Others v Minister of Home Affairs and Others (2006 (3) BCLR 355
(CC)) , in which the Constitutional Court indicated the importance of
religion, should be applied here.
In
reading the two cases, the Committee is of the view that it does not appear
that the
Conclusion
The
Committee is of the opinion that the submission made does not warrant a review
of the Constitution.
Submission
2 by NABCAT
The
submission proposes a review of the Construction Industry Development Board Act
38 of 2000. NABCAT alleges that the
Construction Industry Development Board (CIDB) was established to groom
emerging contractors and capacitate them to participate in government projects,
but has failed to do so. It further alleges that the CIDB’s rating of
construction companies disadvantages black-owned construction companies and
perpetuates past imbalances in the construction industry.
Conclusion
The
Committee is of the view that the NABCAT submission does not propose the review
of a constitutional provision, but rather the possible review of an Act of
Parliament relevant to this particular issue.
The
Committee recommends that matter be referred to the Director-General of the
Department of Public Works and- the submitter be advised as such.
Submission
3 by Rashid Patel & Company
The
submission is on the infringement of Constitutional rights. The submitter proposes that the Constitution
should be amended to incorporate a provision which will give subjects a right
to lay criminal charges against officials when they infringe Constitutional
rights.
The
Committee is of the view that the submission does not specify the Constitutional
right(s) that officials allegedly breach.
However, section 38 of the Constitution deals with the enforcement of
rights.
The
Committee is therefore of the view that the proposal does not warrant any
amendment to the Constitution.
Conclusion
The
Committee has recommended that this matter be referred to the relevant
Parliamentary Committee and/or the Director-General of the Department of Public
Service and Administration - the submitter be advised as such.
Submission
4 by Mr McLeod
It
was submitted that all references to God be removed from the Constitution to
confirm the secular nature of the Constitution.
It was also suggested that the Constitution should establish and include
basic rights in accordance with the precepts of Ubuntu for sentient beings,
including animals.
The
Committee is of the opinion that the Constitution is founded on the equality
principle and is the supreme law. As
such there is no confusion or conflation of the Constitution with ‘God’s law’.
Section 15(2) indicates that the state has a strong interest in religious
bodies. Further it found that the
Constitution is not opposed to religion, but values the role it plays in the
society.
On
the proposal on the establishment and inclusion of basic rights in accordance
with the precepts of Ubuntu for sentient beings, including animals, the Committee
does not support the suggestion for the inclusion of positive rights for
animals in the Constitution. It draws its conclusion on this matter from the judgements in the cases
of Port Elizabeth Municipality v Various Occupiers 2004 (12)
BCLR 1268 (CC) and
the Azanian Peoples Organisation and
Others v President of the Republic of South Africa and Others 996 (8) BCLR 1015
(CC), as well as the judgment of Mokgoro J in S v Makwanyane and Another 1995 (6) BCLR 665 (CC) which recognized
that fundamental rights were already infused with the precepts of Ubuntu.
It feels that legislation that guarantees the protection of animals is
sufficient.
Conclusion
The
Committee is of the view that the submission does not warrant a constitutional
review..
Submission
5 by Sekwele Centre for Social Reflections (SCSR)
The
submissions by the SCSR are as follows:
(1) Children’s Rights: section 28
The
proposal is for the limitation of section 28 of the Constitution so as to
“restrict the conditions in which termination of pregnancy should be
performed”. The submitter recommended
that abortion should be limited to instances where pregnancy poses a health
risk to the baby or the mother, and where pregnancy was a result of rape.
The
Committee is of the view that section 28(2) of the Constitution provides that
the child’s best interests are of paramount importance in every matter that
concerns the child. This section does
not regulate abortion. The Choice of
Termination of Pregnancy Act, 1996 (Act No.92 of 1996) deals with the
termination of pregnancy. It would seem
that the submitter proposes for the amendment of the Constitution, bypassing
legislation that gives effect to a Constitutional right. The Committee notes the legal principle
applied in the case of NAPTOSA and others
v Minister of Education, Western Cape and Others 2001 (4) BCLR 388
(C).
Conclusion
The
Committee is of the opinion that the submission does not warrant any
constitutional review.
(2) Education
Rights: section 29(1)(a)(b) and section 29(3)
The
SCSR proposes that an amendment should be made to section 29 (1) to provide for
free basic education at least up to a Grade 12 level. The Committee is of the
opinion that it would not be necessary to amend the relevant section, as it
already places a positive obligation on the state to take reasonable measures
to progressively make both basic and further education available and accessible
to everyone.
SCSR
also suggested that section 29(1)(b) should be amended so as to relieve
graduates of the legal obligation of repaying a loan obtained through the
National Student Financial Aid Scheme (NASFAS).
Conclusion
The Committee decided that these
should be referred to the Parliamentary committees on Basic and Higher
Education respectively, and the submitter should be advised as such.
(3) Section
25 : Property
The
SCSR proposes the scrapping of section 25
of the Constitution in its entirety. The
argument is that this section is serving the interest of the rich at the
expense of the poor. It further holds that section 25 is the cause of the
widening gap between the rich and the poor.
Conclusion
The
Committee has decided that the submission be deferred pending further
consultation by the political parties.
Submission
6 by Dr M Pheko
The
submission proposes an amendment in section 25(7) of the Constitution. The proposal concerns the effectiveness of
section 25 of the Constitution in addressing past injustices.
Conclusion
The
committee decided that the submission be deferred pending further consultation
by the political parties.
Submission
7 by
The
submission by the MPHTL suggests the following:
(1) The
roles and functions of Traditional Councils must be defined in Chapter 12 of
the Constitution.
(2) The
status of the House must be defined - whether it is a public entity or part of
Parliament.
(3) Recognition
of traditional leadership must include all layers of traditional leadership.
(4) Intergovernmental
relations must be amended to include the institution of Traditional Leadership.
(5) The
House’s financial management must be regulated by the Financial Management of
Parliament Act.
The
submission by the MPHTL is still under consideration.
Submission
8 by Mr or Ms Ruiters
The
Committee could not consider the submission as it was not legible and the
submitter could not be traced.
Submission
9 by Anne-Marie Robb
The
submitter requests the Committee to address the issue of legal capacity,
especially in relation to mental health care users. She suggests that the Constitution should
make it clear that legal capacity of persons cannot be taken away from them
arbitrarily. She also submits that the
term “conscience” may seem to suffice, but including “psychosocial/physical
disability “will enrich the Constitution in line with the United Nations
Convention on the Rights of People with Disabilities.
The
Committee is of the view that the request by the submitter is sufficiently
addressed in the Constitution, the Mental Health Care Act and in general in the
South African law of persons.
Conclusion
The
Committee recommends that the submission be referred to the Director-General of
the Department of Justice and Constitutional Development for further
explanation on issues of legal capacity status- the submitter be advised as
such.
Submission
10 by Mr Thamsanqa Robert Ncube
The submission deals with the
connections between material and political inequality. However, while the submission makes reference
to the inter-relationship between “material and political inequality and how
protests formed around demands to address the former may have positive
consequences”, the submitter does not propose an amendment to the Constitution
as such.
Conclusion
The committee is of the view that
the matter does not warrant a review of the Constitution.
Submission
11 Advocates for
Transformation (AFT) -
The submission recommends that
Parliament should amend sections 168(3), and 172, as well as sections 8 and 38
of the Constitution. In regard to
section 168(3), the proposal is for the exclusion of all matters which fall
within the jurisdiction of the
The AFT also argues that section 8
has been interpreted to mean that common law or legislation must be relied on
to invoke right in the Bill of Rights.
They argue that this is an incorrect interpretation and that Parliament
should amend this clause to make it clear that this is not what is intended.
The AFT is of the view that section
38 of the Constitution has to be dealt with in conjunction with section 172,
which makes it clear that, once a court has found that the law or conduct is
inconsistent with the Constitution, it has to declare such law or conduct
invalid to the extent of its inconsistency.
Conclusion
The Committee decided that the
matter should be referred to the Portfolio Committee on Justice and
Constitutional Development and advises the submitters to make a submission when
the Superior Courts Bill and the Constitution 19th Amendment Bill are
tabled.
Submission
12 by Mr Mkhalipi
The
submission is on the distortions in the copies of the
Constitution which mark 10 years of freedom. The submitter questions whether
the significance of the Constitution is appreciated in respect of the manner in
which the text is distributed and its value is promoted. The submission indicates that the “most
recent copies of the Constitution in circulation contain several embarrassing
errata” and argues that the “oversight authority”, which is Parliament, might
need to proof-read and certify all updated editions of the Constitution.
The Committee is of the view that
the issue is not a “Constitutional matter” that would require a Constitutional
review.
Conclusion
The Committee recommends that the
matter needs to the referred to the Director-General of the Department of Justice
& Constitutional Development and the publishers.
Submission
13 by the National House of Traditional Leaders (NHTL)
The
submission proposes amendments to Chapter 12 of the Constitution.
The NHTL also argues that the chapter of the Constitution, which deals with
Local Government, deprives traditional leaders of their right to govern their
own communities. It proposes that the
powers, functions and duties of any Local Government be performed by
traditional leaders to ensure that service delivery and development in
traditional communities take place rapidly.
It further suggests that, where an organ of state has allocated a role
or function to traditional councils or traditional leaders, the organ of state
must monitor the implementation of the function and ensure that the
implementation of the function is consistent with the Constitution. Where a traditional council does not perform
an allocated function, any resources given to a traditional council to perform
that function may be withdrawn. The NHTL
also suggests that traditional leaders should be represented in all legislative-making
bodies, including Parliament.
The
submission by the NHTL is still under consideration.
Submission
14 by IDASA
The
submission proposes an amendment to section 47(1) of the Constitution.
Conclusion
The
Committee has decided to defer the submission for further consultation by
parties.
Submission
15 by Mr Ismail
The
submission by Mr Ismail is not a submission in respect of a Constitutional
amendment, but rather a request for legal advice on the legal remedies
available to restitution claimants who are dissatisfied with compensation paid
to them in respect of their land claims.
Conclusion
The
Committee is of the view that this matter does not fall within its
jurisdiction. The Committee has decided that Mr Ismail should be advised to
approach the nearest justice centre for advice on the legal remedies.
Index
of submissions received:
|
Number |
Submitter |
|
1 |
Mr Jerome Veldsman |
|
2 |
NABCAT |
|
3 |
Rashid Patel & Company |
|
4 |
H Mcleod |
|
5 |
Sekwele Centre for Social Reflection |
|
6 |
Dr M Pheko |
|
7 |
|
|
8 |
Mr or Ms Ruiters |
|
9 |
Ms Anne-Marie Robb |
|
10 |
Thamsanqa Robert Ncube |
|
11 |
Advocates for Transformation-Gauteng |
|
12 |
Mr Mkhaliphi |
|
13 |
National House of Traditional Leaders |
|
14 |
IDASA |
|
15 |
Mr M Ismail |
Report
to be considered.