2016 public submissions: consideration of outstanding legal opinions

Constitutional Review Committee

21 February 2019
Chairperson: Mr L Nzimande (ANC) & Mr M Maila (ANC)
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Meeting Summary

The Committee received the legal opinions on five 2016 submissions that were sent to the Committee.

The Committee noted that there would be a full deliberation on these matters in the next meeting. For this meeting, Members would receive the legal opinions and ask questions of clarity if there were any.

The first submission was from Agang SA Youth Structure. The submission dealt with a range of provisions within Chapter 2 (the Bill of Rights) of the Constitution, which they called the Committee to consider during its process of constitutional review. The Committee was advised that the request falls outside the Committee’s mandate, but other issues fall into oversight function by other Committees and departments dealing with that particular line function.

The second submission was from Mr Ngobeni on behalf of his community of farm workers. His submission did not deal with specific amendments but that his community is not empowered in terms of access to the Constitution. Therefore, he requested the Committee to aid by providing copies of the Constitution so that his community can participate in future. The second part of his submission highlighted that they are suffering due to rising food prices as they are not yet of the age where one could apply for old ages grants, but also not young enough to successfully compete in the job market.

The Committee was advised that the first issue can be easily addressed by requesting the Acting Secretary to Parliament to, through Public Education Office, assist the community in obtaining such copies.  On the second matter, the Committee was advised that there is no constitutional amendment request before the Committee to consider for purpose of its section 45 mandate. However, the Committee can – in the interest of the exercise of Parliament’s constitutional oversight obligation – refer the community’s socio-economic concerns as a petition to the relevant parliamentary committee(s) to consider.

The third submission –from the Leader of the Opposition – dealt with the removal of the President from office. The Legal Advisor pointed out that the National Assembly has already adopted very extensive rules on how the removal of the President process would unfold.

The fourth submission was from the Griqua Royal House. It asked for particular grouping to be recognised in relation to chapter 12 of the constitution.  The Committee was advised that there is no need to amend the constitution to provide recognition for the category of people in the Griqua Royal House submission since the Traditional Framework Bill is under way to achieve that end.

The final submission was from Equal Education. The organisation recommended amendments to Section 100 of the Constitution. The aim of the proposed amendments were to remedy gaps which may contribute to failures in the implementation and monitoring of a Section 100 intervention, the likes of which have tragically manifested in the case of the Eastern Cape. Equal Education asserted that its proposed amendments have the power to ensure that a section 100(1)(b) process occurs as expeditiously as possible and that it is not delayed by any obstacles or tardiness on the side of the national executive. It would go a long way towards ameliorating the danger of a stale or intractable intervention which has simply been left hanging – precisely the type of ineffective and unaccountable intervention as that which appears, at least in form, to be ongoing in the Eastern Cape.

The Legal Advisor indicated that the organisation had made compelling cases and cited practical examples to support its submission. Its contention is also backed by the Presidential Task Team assembled to resolve issues in Limpopo. The recommendation was that the submission should be supported and an amendment should be made to section 100 of the Constitution.

Meeting report

Opening remarks
Mr Nzimande welcomed everyone and noted that NCOP Members have left Cape Town for the State of Provinces Addresses in their respective regions and this will be reflected in the apologies.

Mr Nzimande stated that each member had received a copy of the legal opinions. The Legal Advisors would take the Members through the legal opinion for each submission.

Legal Opinion on Agang Youth Structure submission
Ms Barbara Loots, Parliamentary Legal Advisor, took the Members through the first submission by the youth structure of Agang SA. Its submission dealt with a range of provisions within Chapter 2 (the Bill of Rights) of the Constitution, which they called the Committee to consider during its process of constitutional review. The issues included, amongst others: the lack of service delivery, abortion, delayed arrest, discrimination concerns in relation to sex workers, a lack of resources in the health sector, a call for education and consideration of basic values of the public administration.

She recommended that the request falls outside the Committee’s mandate, but other issues fall into oversight function by other Committees and departments dealing with that particular line function.

Mr Nzimande submitted that there would be a full deliberation on these matters in the next meeting. For now Members would receive the legal opinions and ask questions of clarity if there were any.

Legal Opinion on Mr Ngobeni (farm worker) submission
Ms Loots said that this specific submission was made by Mr Ngobeni on behalf of his community of farm workers. His submission did not deal with specific amendments but that his community is not empowered in terms of access to the Constitution. Therefore, he requested the Committee to aid by providing copies of the Constitution so that his community can participate in future.

The second part of his submission highlighted that they are suffering due to rising food prices as they are not yet of the age where one could apply for old ages grants, but also not young enough to successfully compete in the job market.

Ms Loots advised that the first issue can be easily addressed by requesting the Acting Secretary to Parliament to, through Public Education Office, assist the community in obtaining such copies.  On the second matter, she advised that there is no constitutional amendment request before the Committee to consider for purpose of its section 45 mandate. However, the Committee can – in the interest of the exercise of Parliament’s constitutional oversight obligation – refer the community’s socio-economic concerns as a petition to the relevant parliamentary committee(s) to consider.

Legal Opinion on Mr Maimane’s submission
Ms Sueanne Isaacs, Parliamentary Legal Advisor, stated that this specific submission was made by Mr Mmusi Maimane, who proposed a constitutional amendment to include Section 89(a) which can be titled the “Term of Office of the President.” He suggested that the provision must include the following wording that “The President ceases to be President if he or she has been found to have:

  • Violated his or her term of Office
  • Committed a serious violation of the Constitution or the Law;
  • Committed serious misconduct

Ms Isaacs highlighted that while the current Section 89 process requires the NA to make a finding and have a 2/3 vote on the impeachment of the President, the process proposed by Mr Maimane does not exclude this role. She highlighted that this might be against the rules of the national justice because any accusations against the President should be provided and afforded the opportunity to defend himself, and how the process would take place. It is unclear how the process would take place in his submission.

She pointed out that the National Assembly has subsequently adopted very extensive rules on how the removal of the President process would unfold.

Legal Opinion on Griqua Royal House submission
Ms Phumelele Ngema, Parliamentary Legal Advisor, stated that the submission was related to Chapter 12 of the Constitution on the Traditional Authority and Leadership. It requested that they should be given recognition in line with what appears in that Chapter.

Her opinion highlighted that Parliament is processing the Traditional and Khoi-San Leadership Bill. In this Bill, Khoi and San groups are expressly recognised and given scope to be part of all formations of traditional houses established in terms of legislation.

Chapter 12, sections 30 and 31 read within the context of the equality clause in section 9 and section 35 of the constitution make it apparent that these are constitutional provisions that protect and promote cultural recognition and practices that maintain self-determination of any community within the republic.

She advised that there is no need to amend the constitution to provide recognition for the category of people in the Griqua Royal House submission since the Traditional Framework Bill is under way to achieve that end.

Legal opinion on Equal Education submission
Mr Nathi Mjenxane, Parliamentary Legal Advisor, recommended amendments to Section 100 of the Constitution. The aim of the proposed amendments were to remedy gaps which may contribute to failures in the implementation and monitoring of a Section 100 intervention, the likes of which have tragically manifested in the case of the Eastern Cape.

Section 100 of the Constitution may be used by national government, as an extreme measure, to take over the functions of provincial government when service delivery has broken down, and to restore the province to a basic level of functioning.
Equal Education pointed out that it has been five years since the Eastern Cape Department of Education (ECDoE) was placed under a Section 100 intervention, but there has been little improvement.
Equal Education contended that accountability and effectiveness in an intervention of this nature can be improved, and learners’ rights better protected, if Section 100 is amended to require more stringent parliamentary oversight and the enactment of legislation that will clearly and carefully regulate the intervention process.
Equal Education asserted that its proposed amendments have the power to ensure that a section 100(1)(b) process occurs as expeditiously as possible and that it is not delayed by any obstacles or tardiness on the side of the national executive. It would go a long way towards ameliorating the danger of a stale or intractable intervention which has simply been left hanging – precisely the type of ineffective and unaccountable intervention as that which appears, at least in form, to be ongoing in the Eastern Cape.

It proposed that in order to cure this, the Constitution (section 100) must be amended to make it a positive legal obligation on Parliament to create a legislation that will stipulate or provide the roles and responsibilities of the organs of State that should be involved in section 100 intervention. Secondly, there should be a provision in the amendment for a quarterly reporting by the NCOP in the instance of an intervention. Lastly, the National Executive must also report quarterly on challenges it experiences when an intervention takes place. This would improve accountability. 

Mr Mjenxane advised that the organisation has made compelling cases and cited practical examples to support its submission. Its contention is also backed by the Presidential Task Team assembled to resolve issues in Limpopo. This was also supported by committees of Parliament such as the Portfolio Committees on Basic Education and Finance which have said that there needs to be legislation in this area. Therefore, he was of the view the submission should be supported and an amendment should be made to section 100 of the Constitution.

The Chairperson thanked the team for the input.

Consideration of the Committee Programme 
The Chairperson said that given the number of the Members that were present, the Committee would not be able to adopt the programme.

The meeting was adjourned.


 

Present

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