Report of the Constitutional Review
Committee on 2011 Public Submissions dated 26 April 2012
The
Constitutional Review Committee, having considered the 2011 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 July 2011 inviting public submissions regarding
changes to the Constitution. In all, 9
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 1 by Mr Mbambo
The submission involves an allegation by the submitter
against Mr Narismulu who failed to meet the agreement
that was reached at the time of sale of the car to the former. The other complaint
was around the submitter’s allegation that his car license which he claims was
confiscated by the Metro Police who told him that he would get it back after he
had paid them an amount of R500.00.
The
Committee felt that the submissions did not contain any request for an
amendment of the Constitution but rather dealt with a civil dispute between Mr Mbambo and Mr Narismulu. The Committee having noted the submission,
the Committee was of the view that the current law provides sufficient
mechanisms by which the submitter might obtain relief he sought. That the submitter would have to be advised as
follows:
(1) That
he would have to seek assistance of an attorney regarding breach of contract by
the seller (Mr Narismulu). If he is unable to afford the legal service,
he would have to approach the Legal Aid South Africa or one of the University
Campus Law Clinics.
(2) In
regard to the issue of the alleged incident of corruption by police officers,
the submitter would have to report the matter to the South African Police
Services and the Independent Complaints Directorate (ICD).
Conclusion
The
Committee has recommended that a letter should be addressed to the submitter
advising him to seek alternative remedies suggested above.
Submission 2 by Mr Mbawula: Amendment of section 9 of the Constitution
The
submitter requested the Committee to look at the law that particularly looked
at initiation issues. The submitter
suggested that circumcision as practised in hospitals could not be equated with
the one that was practised customarily and traditionally in African
communities. His view was that failure
to distinguish between the two different practises had the effect of
undermining his traditions.
The
Committee is of the view that the Children’s Rights Act of 2005 recognizes circumcision,
irrespective of by whom it is done and how it is practiced. This approach is consistent with the
constitutionally-entrenched right to equality provided for in section 9 of the
Constitution (the Equality Clause). It was therefore not necessary nor desirable to amend the Constitution and the Children’s
Act, 2005.
Conclusion
The Committee concluded not to support the proposal by the
submitter.
Submission 3 by Bathlakoane Ba Manzimnyama
The submission requested a review of section 25 of the
Constitution (property clause) to allow for a new clause that would allow for
each government administration to have a window period to lodge land claims
until everyone had been accommodated.
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.
Conclusion
It was suggested that the submission should be deferred, so
that it could be dealt with at the same time as other outstanding submissions
that had proposed for a review of section 25.
The submission is still under consideration.
Submission 4 by Mr TA Mojaki
The submitter proposed the review of section 35 (3) (n) of
the Constitution, which deals with right of the arrested, detained and accused
persons. The Committee having considered
the submissions felt that it did not warrant any review of the Constitution.
It was suggested that the submitter would be advised to file
his application for release on parole with the Correctional Supervision and
Parole Board. Furthermore, the
submission should be referred to the Portfolio Committee on Correctional
Services and the Head of the Department of Correctional Services.
Conclusion
The Committee decided not to support the proposal – the
submitter would be informed of the Committee’s decision on the submission
Submission 5 by the National House of Traditional Leaders (NHTL)
The submission proposed an exclusion of ‘sexual orientation’
from Chapter 2 of the Constitution which deals wit the Bill of Rights. The NHTL argues that ‘sexual orientation’
should be removed as a listed category from section 9 of the Constitution.
Conclusion
The Committee decided that the submission should be deferred
and dealt with in the same manner as submissions made on section 25 of the
Constitution.
The submission is still under
consideration.
Submission 6 by the
National House of Traditional Leaders and
The submission proposed a review of section 211 and 212 of
the Constitution. It was decided that
the submission should be set aside and dealt with together with the other
submission (Committee reference 7/10) which was made in 2010.
Conclusion
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 7 by [email protected]
and [email protected].
The submissions were by electronic mail from [email protected] and [email protected]. These submissions proposed amendment of
sections 25 and 86 of the Constitution respectively.
The submitters were of the view that section 25 of the
Constitution should be scrapped and replaced by the proposals stipulated in
their submission (Committee reference 7/11).
The Committee felt decided that the proposal should be dealt
with together with other submissions on section 25 of the Constitution.
Furthermore, the submitters proposed the scrapping of
section 86 of the Constitution, which deals with the election of the President. The proposals made by the submitters were
listed in their submission (Committee reference 7/11).
Conclusion
The Committee having deliberated on the submissions decided
that both submissions would be dealt with in the same manner as those that were
proposing for a review of section 25 of the Constitution.
The submissions are still under consideration.
Submission 8 by Mr Terezakis
The submitter proposed amendment to section 28(1) (b) of the
Constitution, which deals with children’s rights. The Committee was of the view that that the
existing legislation adequately covers the proposed amendment.
In addition, the submitter proposed amendment to sections
165 (3) and 182 (3) of the Constitution with regard to the mandate of the
Public Protector. The Committee accepted
the view that the Constitution of the
Conclusion
The
Committee is of the opinion that the proposals made by the submitter do not
warrant any constitutional amendments.
The submitter will be advised on the Committee’s conclusion on the
matters.
Submission 9 by Mr BB Ngobese
The submission did not actually refer to any review of the
Constitution, but rather highlighted unhappiness with circumstances and
problems that impact on the effect of certain rights afforded to the arrested
and accused persons in terms of the Bill of Rights.
The submitter argued that section 28 (g) of the
Constitution, which deals with children’s rights, creates the impression that
crime perpetrated by a minor or teenager is not a real crime. It was therefore felt that the submission did
not propose for a review of the Constitution.
In addition, the submitter was of the view that section 32
(1) (b) of the Constitution, which deals with access to information, should not
apply to criminal matters, as it allows the defense to gain an unfair
advantage. However, section 32 (1) (b) does not specifically refer to accused
persons. Instead, the rights relating to
accused persons are contained in section 35 of the Constitution. Therefore, if an accused person requires
information that is held by another person in order to exercise or protect a
right, that accused person will have recourse to section 32 (1) (b) of the
Constitution.
Mr Ngobese further made a
submission on section 35 of the Constitution, which deals with the rights of
the arrested, detained and accused persons.
The Committee was of the opinion that the submission did not
refer to any amendment or review of the sections mentioned above. It was rather centred
on ‘unhappiness’ about the manner in which certain rights in the BoR were perceived to be abused by arrested and accused
persons. Therefore, the submitter did
not highlight any matters warranting review of the Constitution.
Conclusion
The Committee was of the opinion that the submission does
not warrant a review of the Constitution.
The submitters will be advised as such.
Report
to be considered
Index
of submissions received:
|
Number |
Submitter/s |
|
1 |
Mr Mbambo |
|
2 |
Mr Mbawula |
|
3 |
Bathlakoane Ba Manzimnyama |
|
4 |
Mr TA Mojaki |
|
5 |
National House of Traditional Leaders |
|
6 |
National House of Traditional Leaders and |
|
7 |
|
|
8 |
Mr Terezakis |
|
9 |
Mr BB Ngobese |