THIS REPORT REPLACES
THE REPORT OF THE CONSTITUTIONAL REVIEW COMMITTEE PUBLISHED IN THE
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS OF FRIDAY, 18 MARCH 2011, P 869
1. Report of the Constitutional
Review Committee on 2010 Public Submissions, dated 18 March 2011
The
Constitutional Review Committee, having considered the 2010 public submissions
made on the review of the Constitution, reports as follows:
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 from the public, as well as the
Committee’s views and its recommendations.
2.
Summaries
of public submissions
Submission by Bathlakoane
ba Manzimnyama: Amendment of
section 25
The
submitters propose that section 25 of the Constitution in its current form should
be repealed and replaced with a provision that will assist the Department of
Rural Development and Land Reform to speed up the process of land reform in
The
Committee, in its deliberations on the submission, felt that, in the light of
the continual appearance of this submission, it would have to pay more
attention to it. Further it felt that
it would have to solicit an expert opinion and consider the possibility of
conducting public hearings on this provision.
The Committee is also of the view that it would have to engage the
Portfolio Committee on Rural Development and Land Reform and the relevant
Ministry on this matter.
Conclusion
The
Committee has recommended that this matter be raised with the relevant
Parliamentary Committee and/or the Director-General of the Department of Rural
Development and Land Reform - the submitter to be advised as such.
Submission by Dr Ramola
Naidoo: Amendment of section 92 (2), Chapter 9,
section 196 and section 216
The
submitter made proposals for amendment of section 92 (2), certain sections
within Chapter 9 and section 196 of the Constitution.
Amendment
on section 92 (2)
Dr
Naidoo proposes that section 92 (2) of the
Constitution should be amended because it implies that the Cabinet is
accountable only to Parliament and not to the President. The Committee, having deliberated on this
issue, was of the opinion that the section, as it stands, does not purport that
Members of the Cabinet are accountable only to Parliament and not to the
President. The Committee considered the
provision in section 85 (1) of the Constitution, which provides that the
executive authority of the Republic is vested in the President; and section 83
(1) of the Constitution, which amplifies this provision by providing that the
President is the Head of State and Head of the national executive. In addition, section 91 (1) of the
Constitution provides that the President, the Deputy President and Ministers
comprise the Cabinet, with the President holding the position of head of the
Cabinet. Therefore, even though the
Deputy President and Ministers are responsible for the powers and functions
assigned to them by the President, the fact that the President is the “head” of
the Cabinet intrinsically imparts a “master and servant” relationship, i.e. the
Members of the Cabinet being subordinate to the Head of the Cabinet. In this instance, the Members of the Cabinet
are subordinate to the President. This
is further implied by the fact that the President has the constitutional power
to appoint and dismiss Members of the Cabinet.
This “master and servant” relationship is further enhanced by the fact
that the parties have entered into performance agreements. In light of the above, the Committee is of
the opinion that members of the Cabinet are therefore responsible and
accountable to the President for powers and functions he assigns to them.
Conclusion
The
Committee is of the opinion that the submission does not warrant a Constitutional
amendment.
Amendment
of Chapter 9
The
submitter proposes that:
(1)
the Commission for Gender Equality
be abolished and that its functions be completely absorbed by the Ministry for Women,
Children and Persons with Disabilities;
(2)
the South African Human Rights
Commission (SAHRC) and the Commissions for the Promotion and Protection of the
Rights of Cultural, Religious and Linguistic Communities (CRL) be merged; and
(3)
the
merged structure created in terms of (2) above incorporates the functions of
the Pan South African Language Board as well.
The
Committee noted that the proposals noted in (2) and (3) incorporates what is
set up on pages 37 to 40 of the Report of the Ad Hoc Committee on the Review of
Chapter 9 and Associated Institutions (the Review Report). The Ad Hoc Committee held an opinion that a
single human rights body could be the answer to strengthening human rights and
also allowing for members of the public to access one body in respect of human
rights. It expressed certain benefits
that it thought were cogent factors for the establishment of a single human
rights body. However, the Ad Hoc Committee
noted that the process of amalgamation would neither be easy nor speedy. Apart from the National Youth Commission,
these bodies were established by the Constitution and amalgamation thus would
require significant constitutional amendment.
In addition, for such an amendment to be effected, Parliament and the executive
should give due consideration to the matter.
It has thus become apparent that the matter of amalgamation still has
not received the relevant impetus from both the executive and Parliament to
allow for the processing of the recommendation.
Conclusion
The
Committee concluded that it would study the recommendations of the Ad Hoc Committee
before taking a position on the proposal.
The submitter would be advised on the outcome as soon as a final
decision is taken on the matter.
Amendment
of section 196
Dr
Naidoo proposes that the Public Service Commission
(PSC) should be abolished and that its functions be incorporated into the Human
Science Research Council (HSRC).
Furthermore, the function of the PSC contemplated in section 196 (4) (f)
(ii) of the Constitution should be transferred to the Commission for Conciliation,
Mediation & Arbitration (CCMA). He
also proposes that section 196 (4) (f) (I, iii, iv)
and 196 (5) (g) of the Constitution should be transferred to the Minister in
the Presidency, who oversees performance, monitoring and evaluation.
The
Committee is of the opinion that the PSC, as stipulated in section 196 (5) of
the Constitution, is accountable to the National Assembly and performs an
oversight over the Public Service. Its
incorporation into the Presidency would mean that its independence and
impartiality would be lost, as its function would be carried by the executive. In addition, the CCMA does not enjoy
jurisdiction over public service disputes.
The General Bargaining Council (GBC) was established to deal with the
public service disputes. .
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.
Amendment
of section 216
The submitter proposes an
amendment to section 216 of the Constitution which deals with Treasury control.
The proposal is for the
incorporation of the word “sustainable” into the text of section 216 of the
Constitution. The submitter is concerned
that there are not sufficient checks in place to assess value for money in
respect of some of the expenditure. He suggests a thorough review of management
level posts by Treasury to ensure that there is a need for these high-ranking
posts.
The Committee deliberated on this issue and was of the view
that it was not in support of the proposal by Dr Naidoo,
as any government, when budgeting for increases, considers sustainability. Therefore, there would be no need for the
word “sustainability” to be incorporated into the Constitution.
Conclusion
The Committee decided not to support the proposed amendment.
Submission by Mr Miya: Amendment of sections
165 (3), 182 (3) and 196 (4)
Amendment of sections 165 (3), 182 (3)
Mr Miya proposes
amendments to the above-mentioned sections of the Constitution which deals with
the judicial authority, functions of the Public Protector and the Public
Service Commission, respectively, as follows:
The submitter argues that the powers of the Public Protector
should be extended to include powers to investigate court decisions. The Committee is of the opinion that an
extension of the powers of the Public Protector to investigate court decisions
would amount to interference with the independence of the judiciary and thus
offend the principle of separation of powers and that the appeal and review of
court decisions still remain effective remedies to litigants not satisfied with
court decisions. Therefore, it would not
be desirable to amend the Constitution to extend the powers of the Public
Protector to investigate court decisions. The Committee deliberated on this
issue and disagreed with the submitter’s interpretation of section 182 (3) of
the Constitution. It further felt that section
182 (3) had no negative effect on the Public Protector’s performance of
functions in terms of both section 182 of the Constitution and the Public
Protectors Act, 1994 (Act No. 23 of 1994).
In addition the Committee feels that there are mechanisms in place to
deal with disputes against the judiciary
Conclusion
The Committee concluded not to support the proposal by the
submitter.
Amendment on section 196, (4)
The submitter further proposed an amendment to section 196,
(4) of the Constitution to extend the powers of the Public Service Commission
to cover Local Government. The Legal
Adviser advised that, in terms of section 2 of the Public Service Commission
Act, the Commission’s jurisdiction is limited to National and Provincial
administrations. By implication, the
Commission’s jurisdiction does not cover municipalities at local government
level. There were no legal impediments
in extending the jurisdiction of the Commission to include local government. .
Conclusion
The Committee decided not to support the proposal – the submitter
would be informed of the Committee’s decision on the submission.
. Submission by the Human Rights Office,
Projects Abroad on section 27
The submitters were of the view that section 27 of the
Constitution, which provides for socio-economic rights, was inadequate. The petitioners were of the view that, unlike
civil and political rights, socio-economic rights were vague and, as such,
difficult to enforce. The opinion by the
Legal Adviser was that the submission did not propose any amendment to the
Constitution. In addition it did not fall within the parameters of the brief.
Conclusion
The Committee deliberated on the submission and decided that
it should not support the proposal, as the matter did not fall within the
parameters of the brief. It was decided
that the submitter should be informed about the Committee’s decision on the
submission.
Submission by Mr Motsoeneng: Amendment of
section 34
The submission proposes an amendment of section 34 of the
Constitution which deals with access to courts, so as to change the current
judicial system. The submitter is of the
view that the Magistrate’s Courts Act, 1944, and the Supreme Court Act, 1959,
were too technical for someone who is not trained in law. The submitter feels that this deprives people
access to justice. He suggests a
judicial system in which the
The Committee feels that there are a number of specialized
courts to deal with all types of disputes.
Therefore, it would not be necessary to amend the Constitution. Furthermore, accepting the proposal for an
amendment to section 34 of the Constitution would require amending Chapter 8 of
the Constitution and that new legislation be enacted
to give effect to the new provisions of the Constitution.
Conclusion
The Committee decided not to support the submission.
Submission by National
House of Traditional Leaders on sections 211 and 212
The submission proposes an amendment of sections 211 and 212
of the Constitution. Adv. Adhikarie was of the opinion that the submission sought to
ensure a perpetual guarantee of the existence of the National House of
Traditional Leaders (NHTL). Furthermore,
there is a proposal for the provisions of the Traditional Leadership and
Governance Framework Act, 2007 which relate to the role and functions of the Traditional
Leaders to be incorporated in the Constitution.
It was suggested that
the Committee should wait for the outstanding submission from the National
House of Traditional Leaders on the inputs it was collating from its
constituents on Chapter 12 of the Constitution.
The submission is still under consideration.
Submission by Traders Action Group
The submission contains issues of
concern raised by a group of informal traders in Mitchells
Plein around a restructuring process that took place
at the Mitchells Plein Town
Shopping Centre in the
Conclusion
The Committee decided that the
submitter should be advised to refer the matter to the City of
Index of submissions received:
|
Number |
|
Submitter/s |
|
2 |
|
Bathlakoane
ba Manzimnyama |
|
3 |
|
Dr Ramola Naidoo |
|
4 |
|
Mr Miya |
|
5 |
|
Human Rights Office, Projects Abroad |
|
6 |
|
Mr Motsoeneng
|
|
7 |
|
National House of Traditional Leaders |
|
8 |
|
Traders Action Group |