2020 public submissions: Committee Content Adviser briefing & discussion

Meeting report

Chairperson Mthethwa welcomed everyone to the meeting. It would be remembered that earlier that week the Committee had received a report from Equal Education. Today, the Committee would be continuing with the receipt of briefings from Ms Sisanda Sipamla, Committee Content Advisor, who would take the Committee through the submissions. It was to be remembered how important these submissions were. The Committee would take the legacy report into account as had been presented to them and Ms Sipamla would take the Committee through what was presented. He was sure that Ms Sipamla would advise the Committee as to which submissions would be considered as a priority going forward. He asked if there were any apologies.

Mr M Dangor (ANC, Gauteng) indicated that his presence may be intermittent as he had an electricity problem.

Dr M Gondwe (DA) submitted apologies from Mr G Michalakis (DA, Free State), Dr A Lotriet (DA) and Mr W Aucamp (DA, Northern Cape).

Chairperson Mthethwa noted the apologies.

Presentation

Parliament: Following up on our commitments to the people – 2020 Submissions CRC

Ms Sipamla presented the 2020 submissions to the Committee. The presentation’s content consisted of: Background; Categorisation of submissions; Submissions of the 2020 year; Table of submissions; and Conclusion.

Parliamentary Joint Rules 101-103 provides for the Committee’s powers, functions and decision making. In May 2020 the public responded to an invitation in the public media and made submissions to the Committee on any constitutional matter. 58 emailed submissions were received, including one legacy resubmission made by the Equal Education on s 100 of the Constitution. All submissions have been referenced and uploaded on the parliamentary intranet.

Submissions are categorised into three categories. Category 1 deals with submissions which fall outside of the Committee’s mandate. Category 2 deals with submissions which may require a parliamentary legal opinion, relevant stakeholder consultation and public hearings. Category 3 deals with submissions which are ready for consideration by the Committee. The review process of the Committee is aimed at assessing whether a submission possess a favourable desirability which may ultimately necessitate the amendment of the constitution as per the proposal(s) contained in the submissions. The Committee reviews the Constitution in order to make a pronouncement and recommendation to Parliament on the desirability of a submission in possibly amending the Constitution in accordance with public will.

Submission 1: Robert Wassenaar is concerned about the amendment of the Constitution to permit South African Police Services to conduct a search of private persons without first obtaining a warrant. It is recommended that the submission be categorised under Category 3 as it expresses concern against a prospective constitutional amendment which is addressed in existing national legislation.

Submission 2: Kgosiemang Moloko wants a review of Chapter 9 to legislate the appointment of internal auditors in the Constitution for transparency. It is recommended that the Committee receive legal opinion on this proposal, thus falling in Category 2.

Submission 3: Catherine Walters requests amendment of national legislation namely the Disaster Management Act and the Emergency Powers Act. It is recommended that this submission falls into Category 1 as the Committee does not make amendments to national legislation.

Submission 4: Nhloso Ntshulane submitted for amendment of s 25 with the effect of repealing the 1913 Land Act. It is recommended that the submission for in Category 3 as it is ready for consideration.

Submission 5: Kim Finkelstein submitted that she does not wish to see the Constitution amended. It is recommended that the submission fall in Category 1 as it is not within the Committee mandate.

Submission 6: Andries Havenga submitted for review s 89(b) on the removal of the President to strengthen accountability provisions as it is currently vague; s 9 is to add consequences for non-compliance and criminal sanction for serious misconduct by the President, Executive and Members of Parliament; and s 19 on political rights to add a subpar (4) that “Every citizen has a right to transparent and accountable governance by government.” It is recommended that the submission falls into Category 2 as it requires legal opinion.

Submissions 7 and 8: Yannick Pousson and Jean Richmond submitted that he does not wish to see the Constitution amended. It is recommended that the submissions fall into Category 1 as it is not within the Committee’s mandate.

Submission 9: Freeman Bhengu submitted on the need for a law excluding refugees and asylum seekers from participation in political activities. It is recommended that the submissions fall in Category 1 as it is considered part of national legislation.

Submission 10: Waseela Jardine submits for the inclusion of a death penalty. It is recommended that the submission fall within Category 3 as it is ready for consideration and falls under the right to life within the Constitution.

Submissions 11, 12 and 13: Patrick Leonard, Kiara Luis, and Tertius Ferreira did not wish to see the Constitution amended. It is recommended that the submissions fall in Category 1 as it is not within the Committee mandate.

Submission 14: Louise Boyes submitted for the removal of any provisions which exclude a full parliament from decision making during Disaster Management and that a decision on national lockdown be decided in consultation with the public. It is recommended that the submission falls under Category 3 as it is ready for consideration and can be accommodated in national legislation.

Submissions 15, 16, 17, 18 and 19: James Arnt, Avis Rens, Fiona Cameron, and Etienne Boeke did not wish to see the Constitution amended. It is recommended that the submissions fall in Category 1 as it is not within the Committee mandate.

Submission 20: Chris Blaine submits for an amendment revoking the right to equality that allows racial discrimination for disaster support and employment. It is recommended that the submission fall under Category 3 as it is ready for consideration and can be addressed in national legislation.

Submissions 21, 22, 23, 24, and 25: Nicole Terblanche, Russell Warwick, Phoebe Daniels, Willie Kirsten, and Johanna Kirsten did not wish to see the Constitution amended. It is recommended that the submissions fall in Category 1 as it is not within the Committee’s mandate.

Submission 26: Olivia White submitted that convicted offenders should not enjoy the same rights as law-abiding citizens and requested a publication of proposed changes to the Constitution for public input. It is recommended that the submission falls under Category 1 as it is not within the Committee’s mandate.

Submission 27: Petrus Classen submitted against any amendment to the Constitution. It is recommended that the submission fall in Category 1 as it is not within the Committee’s mandate.

Submission 28: Retha Duminy objected to suggested variations in the Constitution to enable SAPS to search people, property and possession without a warrant. It is recommended that the submission falls under Category 1 as the statement did not propose a review of the Constitution and speaks to a prospective change to the Constitution which has not been affected as yet.

Submission 29: Ms Belcher objected to constitutional changes that will affect the rights of citizens, employees, homeowners, and parents and adversely affects privacy. It is recommended that the submission fall under Category 1 as it is a statement and not a proposed review of the Constitution.

Submission 30: Yolandi Tesner submitted against any amendments to the Constitution. It is recommended that the submission falls in Category 1 as it is not within the Committee’s mandate.

 Submission 31: John Wilkinson submitted comments on legislation, namely the Independent Police Investigative Directorate Amendment Bill, asking whether the President signed this legislation into law and submitted a new article on the South African National Defence Force deployment and commented. It is recommended that the submission falls under Category 1 as it is not within the Committee’s mandate.

Submission 32: Khutso SK of Valodagoma submitted on the recognition of Khilovedu as an official language in s 6(1) of the Constitution. It is recommended that the submission falls under Category 2 as legal opinion is required as well as relevant stakeholder consultation.

Submission 33: South African Secular Society submitted that, despite the equality clause in s 9 prohibiting discrimination by the State on the basis of religion and belief, the Preamble makes reference to God and this is unconstitutional and should be removed. It is recommended that the submission falls under Category 2 as legal opinion is required given that fair discrimination is permissible within reasonable ground.

Submission 34: Martin van Staden of the Free Market Foundation requests an impact assessment of the public policy, discusses constitutionalism standards for government and makes suggestions on how s 36 (limitation clause) and s 37 (derogation provision) ought to operate during a state of national disaster. It is recommended that the submission falls under Category 2 as legal opinion is required.

Submission 35: Professor Nogwaja Zulu of Howard College submitted a request to make a written and oral presentation to the Committee on s 6 use of official languages. It is recommended that the submission fall under Category 1 as it is not within the Committee mandate.

Submission 36: Paul Hoffman, senior counsel of the Institute for Accountability in Southern Africa, submitted for a new Chapter 9 Institution to strengthen the eradication of corruption. It is recommended that the submission falls under Category 2 as a legal opinion is required.

Submission 37: Waseela Jardine asked for the removal of provisions on blacklisting of individuals as this has a negative impact on future official endeavours and prospective employer. It is recommended that the submission fall under Category 1 as it is not within the Committee’s mandate and does not relate to clauses of the Constitution.

Submission 38: Graham Smith submits that the Constitution is adequate and does not require any amendments. It is recommended that the submission fall in Category 1 as it is not within the Committee’s mandate.

Submission 39: Louise Boyes wishes to have disaster management or anything which diminishes a full Parliament from being included in decisions removed from the Constitution. It is recommended that the submission falls under Category 3 as it is ready for consideration and the matter can be accommodated by national legislation.

Submission 40: Desiree Lotter submits that the Constitution should change to reflect that anyone who has been investigated for corruption or fraud or tender tampering should not be allowed to hold a position of power. It is recommended that the submission falls under Category 3 as it is ready for consideration – South Africa is a constitutional State where the rule of law ensures that persons or organisation accused of transgressing the law are investigated and charged accordingly.

Submission 41: Marinus Uys does not wish for the Constitution to be amended as the problem is accountability. It is recommended that the submission falls in Category 1 as it is not within the Committee mandate.

Submission 42: Jason Rogers submitted a view against amendments to the Constitution. It is recommended that the submission falls in Category 1 as it is not within the Committee mandate.

Submission 43: Adrian Davies, submitted for the review of Chapter 12 of the Constitution on Traditional Leaders, for abolishment of unelected persons from holding power or accessing State or provincial resources like land worked or inhibited because of hereditary title. It is recommended that the submission falls under Category 3 as the matter is considered and passed into law under national legislation.

Submission 44: Warren van Niekerk disapproves of the Disaster Management Act and would like every political party to have representation in decisions, adding that Parliament must be explicitly involved. It is recommended that the submission falls under Category 1 as it is not within the Committee mandate and can be accommodated in national legislation.

Submission 45: Ashley Weatherdon submitted on disapproval of the ban on liquor and cigarettes. It is recommended that the submission falls under Category 1 as it is not within the Committee’s mandate.

Submission 46: Mthandazo Hlahla, on behalf of Oxfam South Africa submits that they would like to make an oral presentation of their written submissions to the Committee on the need to amend and align the Electoral Act and the Ingonyama Act. It is recommended that the submission fall under Category 3 as the matter is currently before Parliament.

Submission 47: Fungani Moyia submits that he is opposed to SAPS having rights to search someone’s house, car or person without a warrant. It is recommended that the submission fall under Category 1 as the submission expresses an opinion and not a proposal for a constitutional amendment.

Submission 48: Duplicate of submission 2 of 2020 by the same submitter. It is recommended that the submission be eliminated and replaced with submission 2 of 2020 and fall under Category 1.

 Submission 49: Iain Cochraine submits his strong opposition to the amendment of the Constitution to allow SAPS to conduct searches without a warrant. It is recommended that the submission falls under Category 3 as it is ready for consideration.

Submission 50: Requests correction of a grammatical error on submission 49 by the same submitter. It is recommended that the submission fall under Category 1 as it is not within the Committee’s mandate.

Submission 51: Duplicate to submission 4 of 2020 by the same submitter. It is recommended that the submission fall under Category 1 as it should be eliminated and replaced with submission 4 of 2020.

Submission 52: Equal Education, on the review and amendment of s 100, legacy submission and legal opinion considered. It is recommended that the submission fall under Category 2 as the desirability is to be deliberated and decided upon.

Submission 53: Justine Ballot submitted for the review of the Constitution in order to make additions to s 1, 2, 11, 12, 14, 27, 35, and 38, and proposed for the insertion of clear constitutional limitations for the government during a state of disaster with the inclusion of civilian and judicial/parliamentary oversight over any state of disaster councils. It is recommended that the submission fall under Category 2 as it requires detailed legal opinion.

Submission 54: Justine Ballot proposed for the inclusion of the right not to self-incriminate and inclusion of a legal way to end the state of disaster and not leave it up to the particular minister. It is recommended that the submission fall under Category 2 as legal opinion is required to guide Committee deliberations on the feasibility of the review proposed.

Submission 55: Duplicate submission identical to submission 54 of 2020. It is recommended that the submission fall under Category 1 and that it be eliminated and replaced with submission 54 of 2020.

Submissions 56 and 57: Mark Kosmas and Claudia Mirino submit their objection to SAPS searches without a warrant. It is recommended that the submission fall under Category 3 as the matter can be referred the Portfolio Committee on Police for consideration and does not necessitate a constitutional amendment.

Submission 58: Ramola Nadio submits for the review of s 18 read with s 22; s 34 to include private arbitration and be cross referenced with s 171 and s 173; s 174(5) to be clarified and s 178(1)(e) and (j) to be amended so that independent sole practitioners can be considered; s 37 must be amended to delete the connecting word “and” between s 37(1)(a) and (b) and replaced with “or”, and clarity on constitutional powers given to the President during a state of emergency is sought; s 42(6) must be amended to provide clearly for Members of Parliament to be able to sit in person separately in different provinces and meet via a remote digital platform; and s 27(1)(b) must be amended to add a provision that the State must ensure within a year that pit latrines are eradicated everywhere. It is recommended that the submission fall under Category 2 as extensive legal opinion is required.

The Committee is advised to take note of the submissions received and consider its satisfaction with the recommended categorisation in order to accordingly process all submissions. It is recommended that the Committee first consider legal opinions where necessary in order to support its deliberations and consider inviting submitters who have requested to make presentations for clarity on possible questions. The Committee may invite relevant stakeholders and experts on submissions it deems necessary to support its deliberations on submissions with a favourable desirability to amend the Constitution. After considering and deliberating on submissions, the Committee must then make a desirability recommendation on each submission in its recommendation report, presented to Parliament.

Discussion

Chairperson Mthethwa asked Members to concentrate on the three main categories that the presentation was about. Regarding the first category of submissions and issues that were raised, Members had to agree as to what would be done with it because it was clearly issues that the Committee could not take a lot of time with. What was important was to agree with the categorisation of the issues tabled. If Members felt that there were submissions that fell within the wrong category, this needed to be looked into as well so that when the Committee adopted the categorisation they knew exactly which category they wanted to deal with. There were submissions which fell under Category 1 which, to him, were non-issues for now and that a lot of time could not be spent on. It was thus a matter of agreeing on the issues that fell under the categories and that they were placed correctly. Category 2 submissions were those that needed the Committee’s attention as it would assist the Committee where they needed to call in or invite stakeholders to present to the Committee. It had been summarised towards the end of the notes, where it showed how many and which issues needed the Committee to deal with them. He thought that this was where the Committee was to spend most of its time. The third category of submissions were those matters that the Committee needed to process. There were individuals or groups that had submitted their presentations, where they suggested that it would be important for the Committee to engage with them further and get an understanding of their presentation. 

Chairperson Motshekga added that Ms Sipamla should be thanked for the brilliant work she had done. A very good foundation had been laid for the Committee to move forward as proposed.

Chairperson Mthethwa asked that Members agree on the categorisation as that was what was important. This was so that when the Committee started to deliberate and deal with the matters, they did not go back and say that certain matters should have been categorised differently. He asked Ms Sipamla if his suggestion was helpful.

Ms Sipamla confirmed that, for now, the idea was for Members to be satisfied with the submissions that the Committee would like to refer so that Members would be able to get more legal input into what the submitter was saying. She indicated that she would also like for Members to first listen to what the legal advisor said before inviting the submitters because it would give the Committee more of a legal stance on the desirability. This was so that, by the time the Committee called the submitter, they would be able to give input – including that from a legal perspective. If the Committee agreed on the categorisation, they would be able to respond to the Category 1 submitters who fell outside of the Committee’s mandate. This would mean that the Committee would be taking care of an entire category by writing back to submitters and informing them of where their matters needed to be referred to a portfolio committee. Where the submitters’ matters are not in line with a committee, the Committee would then explain this to them. Where the submitters were discussing s 25 of the Constitution on the amendment of the land matter, the Committee would then refer them to an update of what Parliament was doing. This would therefore eliminate the Category 1 submissions. The Committee would then be left with hearing the legal opinions. Once the legal opinions are heard, Members would then be able to collectively decide whether they would like to call all submitters or those submitters requested. Thereafter, Members would have a table of what was before them and would then decide whether it was either desirable or not desirable based on all of the inputs that would assist them to arrive at that decision.

Chairperson Mthethwa asked Members for their views.

Dr Gondwe appreciated the document that Ms Sipamla put together as it was very comprehensive and made Member’s lives easier. She did not have a problem with the categorisation. She was worried that 33 out of the 54 submissions that the Committee received, fell outside of the Committee’s mandate. Did people understand what they needed to do when they made submissions? Her understanding was that the Committee was asking people to put forward submissions in relation to whether a particular aspect of the Constitution should be amended or not. The Committee was then getting people saying that they do not want it to be amended. 33 of the submissions fell under Category 1, which meant that they fell outside of the Committee’s mandate. This was a bit worrying because the Committee would like to see more people engaging on whether or not a particular aspect of the Constitution should be amended. If it was agreed that those submissions under Category 2 needed a legal opinion, then what happened next? Did the Committee get the legal opinion and then decide whether or not they recommend that it is desirable in the circumstances that the amendment be made? Did the Committee then need to call the legal advisors to come in as well? This was not entirely clear.

The presentation was good but she felt that, as it was packaged, it was still a bit too dense. She suggested that Ms Sipamla put together a table. The table columns would be the submission number, content or subject-matter of the submission, category under which the submission falls, and then an indication of what the Committee has done. In this way the Committee would be able to track all of the submissions. When a letter is sent out, especially around Category 1 submissions, indicating that it fell outside of the mandate of the Committee, it was to be indicted which day the letter was sent and that it had been sent. In terms of Category 2, when a legal opinion is requested, it is to be indicated on which date the legal opinion was requested and when it had been received. The same applied in terms of Category 3. In this way the Committee would be able to track its work and have it in one document instead of having it in a bulky document of 40 pages. She clarified that she was not criticising Ms Sipamla’s work as it was very good and it made the work of the Committee easier but was just suggesting that it be packaged in a clearer format. This was because she found that, with Parliament, it was very good at saying what work it needed to do but not how it tracked the work that was doing and the outcome thereof – which was very important. Even where the Committee referred something to a particular committee, the Committee needed to have a way of saying, at the end, that they had referred so many submissions to various committees. In this way, the Committee would be able to follow up, either with the chairpersons or secretaries of the committees, to make sure that the Committee’s work came to fruition. It was not enough to say whether a submission was desirable or not, as the Committee needed to see it though until the end.

Chairperson Mthethwa mentioned that the presentation was a summary of thousands of documentation that had been received. He agreed with some of Dr Gondwe’s proposals but he had some reservations. He suggested that, for now, the Committee should go about saying which matters were raised under Category 1, 2 and 3 in bullet form. This would provide a high level summary. For now, it was important for the Committee to get some detailed background on the many, thick documents that had been gone through. The current presentation was the first summary of the documentation and the Committee could now have a one pager where it is put into squares of submissions under Category 1, 2, and 3, and those submissions that were recommended to be invited after getting a legal opinion.

Ms Sipamla thanked the Committee for their appreciation of her work and appreciated the guidance as it would allow for the Committee to have an executive summary and to officially table everything, instead of Members going through the original emails that were sent. Members could cross-reference to the original emails to satisfy itself that the summary in fact emanated from what was submitted. If Members were in agreement with the categorisation, which she sensed was the case, she could then go into a tabulated representation of the work before the Committee. This was where she would use the advice of Dr Gondwe in terms of having the date where the Committee had written to people to say that their matter had been referred to a portfolio committee or that the matter is not in line with the Committee’s work. After this meeting, it would be easier for her to put together a high level presentation as Members would be aware of all of the issues and method of work and give her input as to how they would like the work to look going forward. She would take all of the advice into consideration and condense the work further. In terms of people not being sure of what the work of the Committee was and why there were so many submissions outside of the Committee’s mandate, she had been speaking to the Committee Secretary.

Herself and the Committee Secretary had realised that people had kind of mistaken the current year’s process as part of the s 25 amendment. Even though people were not clear in their emails, saying that s 25 should not be amended. There was perhaps only one submitter who was clear. She thought that, in the minds of South Africans, they were applying their proposals to not wanting s 25 of the Constitution to be amended and therefore the Constitution should be left as is. These people might have confused the process of the Committee inviting public submissions on changing the Constitution with regards to the Draft Constitution Eighteenth Amendment Bill. The Committee would then also write to those submitters who were explicit in saying that they do not want to see change in terms of s 25 and update them on the processes thereof. There would then be a more high-level presentation once Members agreed on the way forward. The idea was that, due to the way in which the submitters had made submissions, the legal advice would assist Members to make a decision on the desirability once they heard the legal stance from Legal Services (Parliament’s Office of Constitutional and Legal Services). Thus, the idea was that because of the technical nature of the way that the submissions had been done, Legal Services would help the Committee condense the submissions further so that Members could then easily say that a submission is desirable or undesirable based on the quoted case law or any laws that would be passed in relation to what was being proposed.

Inviting submitters was something that the Committee had done in the past because they needed to be included in the process of review. The Committee could not just receive the submitter’s written submissions as they also needed to be given an opportunity to express themselves on it and allow Members to interact with them. This was how the Committee previously worked because of the serious nature of amending the Constitution. People had to be given an opportunity to express themselves and answer any clarity-seeking questions and it was also an opportunity to assist the Committee. Where the Committee also wanted to invite any stakeholders who were relevant for the submission, this needed to be done so that when the Committee arrived at its decision it would have been supported by the submitter, legal services and experts in the field. Therefore, the Committee would be making a final recommendation to Parliament on the desirability based on an informed decision. This was the idea behind her suggestion that the Committee proceed in the way that they had been working in the past.

Chairperson Motshekga agreed with the observations made by Dr Gondwe but did not think that it detracted from the good work that Ms Sipamla had done. It would help the Committee in going forward as to how they should approach the work. He thus fully supported Dr Godwane, subject to his comment. With regards to the question as to whether the public understood what was required of them, he wondered whether the Committee could have a pamphlet outlining how the process worked so that there was no confusion about the different processes that happened in Parliament.

Dr Gondwe fully agreed with Chairperson Motshekga’s suggestion around the pamphlet because, as Parliament, the Committee also had a duty to inform members of the public so that they are able to fully participate in the processes of Parliament. Where the public did not understand what the Committee was doing, there was a duty on the Committee to inform and educate members of the public. She agreed that a pamphlet was needed that had a sample submission on how a submission should look like, to empower members of the public to be able to fully interact with the Committee.

Chairperson Mthethwa hoped that the Committee Secretary noted these matters. He asked if any other Members wanted to engage on the presentation before he handed over to Chairperson Motshekga to provide a high-level summary of the meeting’s discussion. The Committee had agreed about the categorisation of the matters that were presented by Ms Sipamla and appreciated the consolidation of the report. The Committee agreed that whenever it was seen that there was an item that had been wrongly categorised, Members could still write to the Chairpersons and Ms Sipamla and it would be seen how the issue should be correctly categorised. Such changes, if any, would be reported on in the next meeting. The Committee agreed on the table that would be redesigned and which would further summarise what had already been summarised before the Committee. In terms of the summary, this would illustrate which items belonged under Categories 1, 2 and 3, as well as those items that needed to be referred. This would also include notes that indicate the date as to when it was referred. It was then a matter of taking these issues forward from there. Chairperson Motshekga and Dr Godwane suggested, and which he thought was important, was that the Committee should have a pamphlet. The pamphlet, which was also important for Members to have, was to explain to the public the process as to what the Committee’s expectation was, what the Committee had received, and how the Committee was processing the matters going forward. In the following year, the same thing would occur as the Committee would still have to receive submissions. When people made submissions, this would allow them to make reference to the pamphlet in terms of what the process was about so that everybody would be aware of how the Committee operated.

Dr Gondwe confirmed that she was satisfied on her side.

Chairperson Motshekga thanked Chairperson Mthethwa for directing the Committee very well. He wondered whether the Committee should not agree on what could be defined as work in progress. He explained that this was whether the Committee would request legal opinions and where the Committee would request people to address it. He suggested that there should also be a category for matters that the Committee thought were ripe and could be taken forward. This was so that the Committee did not become one that deliberated for centuries without reaching a conclusion. There may be matters that were ripe or that should be ripe for referral and recommendation to Parliament with a view to referring them to the appropriate committees that had to take the matter forward. This distinction was important. For example, if there were any matters such as Khilovedu and sign language, which had been dealt with, they could be isolated and the Committee could prepare a report to Parliament in order for Parliament to refer them to the appropriate committees for there to be progress on the work that the Committee did. He thanked Ms Sipamla and her team for the brilliant way in which they approached the work and he appreciated Members’ contributions because it helped the Committee improve on their work. This was a new territory for everyone and he thought that the Committee would learn as it went on but the support that they had received was of high quality. The Chairpersons and secretariat would look at the way forward and see what needed to be done further as well as how soon the Committee could convene again.

The meeting was adjourned.