Hon Speaker, as you should be aware, there is already a constitutional amendment before Parliament which amends the powers of the Constitutional Court. This is the Constitution Seventeenth Amendment Bill, which was introduced last year. Far from limiting the powers of the Constitutional Court, the Bill, in fact, extends its jurisdiction.
One of the provisions of the Constitution Seventeenth Amendment Bill concerns which cases can be taken on appeal from the Supreme Court of Appeal to the Constitutional Court. Currently, the Constitutional Court may consider appeals from the Supreme Court of Appeal that are constitutional matters, as well as issues connected with decisions on constitutional matters.
The amendment will allow the Constitutional Court to consider any appeal on the grounds that the interests of justice require that the matter be decided by the Constitutional Court. I am informed that deliberations on the Bill are proceeding well in the Portfolio Committee on Justice and Constitutional Development, and that all parties are approaching the discussions with a view to arriving at the best conclusion for the administration of justice in our country.
I must state that I am a bit surprised by the concerns that have been raised regarding amendments to the Constitution. The Constitution is a living document. As I pointed out in my reply to the state of the nation debate, it is meant to be reviewed annually by a committee of Parliament. The Constitution has already been amended 16 times since it was adopted in 1996. That is a perfectly normal exercise.
As stated during the state of the nation address, we reaffirm our commitment to advancing the ideals of our country's Constitution. We have alluded to the fact that the kind of assessment we are to embark on is not unusual. For example, universities and research institutions undertake research at times to evaluate the impact of jurisprudence on the lives of people. This year marks 17 years of our constitutional democracy and is the 15th anniversary of the Constitution. It is an opportune time to review the capacity of the three branches of the state in carrying out their respective constitutional mandates and the way that their efforts have contributed to the establishment of a truly free, equal, nonracial, nonsexist and prosperous society. Continual assessments done in an open and transparent manner cannot possibly do any harm, especially given the legacy of colonial oppression and apartheid that we must eradicate.
The Minister of Justice and Constitutional Development has released a discussion document on the transformation and role of the judicial system in the developmental South African state. We invite all stakeholders to participate actively to enhance and strengthen our democratic institutions. I thank you, hon Speaker.
Thank you, Mr Speaker and Mr President. Mr President, I am afraid you have added to confusion and uncertainty about this matter. On 8 July 2011 you said that the powers conferred on the courts cannot be superior to the powers resulting from the elections, which brings into debate which is supreme. Are we going back? Is it your plan to take us back to parliamentary supremacy, or the Constitution? This is what the debate is about. It is clear from what we read and hear that, in fact, it is the ANCs and your, with respect, intention to eventually amend the Constitution so that supremacy comes back to Parliament. If you do that, with respect - you know we lawyers, if we want to be unfriendly, we say "with respect" ... [Laughter.] ... Mr President, if you want to do away with that pillar of the Constitution, it would be your duty to go back to a form of Codesa.
Well, thank you, hon Speaker. I think the hon member must not confuse himself and then claim that he has been confused by other people. [Applause.] The three arms of government have very clear, distinct functions. They are very clear, and they must be respected. The function of this Parliament is to legislate and conduct oversight. Correct? Yes, he is nodding. That is its job.
Whilst it is the arm that makes the laws, it does not interpret the laws. That is the duty of the judiciary - which must even check whether this arm has all the necessary constitutional understanding in making the law in terms of whether they are infringing on the Constitution. Is your law constitutional? That is the job of the judiciary. The executive must run the country; that is its duty. In the process of all of this, these different arms respect one another. They work together. They must co- ordinate this, because they belong to one and the same state.
That's why it is not the duty of the judiciary to review itself. It could do so if it wanted to, but other arms have the duty to do so. That is why this Parliament has amended the Constitution 16 times. Dealing with matters of the Constitution is the duty of other arms as well. The executive implements the Constitution as well.
So, what we are saying is that if there are things that are done or decisions taken or, you could emerge as Parliament and feel that there are things you believe that need to be looked at, the judiciary could send back a law and ask for it to be looked at again. It is not imposing it on you; it is exercising its duty. That is why we have the Joint Committee on Constitutional Review here. We are not imposing on - or trying to change - the Constitution. We are doing our duty.
What we are saying is that in the process of governance, we have to come to a point at which we say: Let us look at this again. Is it moving properly? This should be done particularly if you are emerging from a system like the one we came from, in terms of which we still have to try to get rid of the remnants of some of the negative things that were there. That is the point we are making. [Applause.]
We don't intend sitting every day with the intent to change the Constitution; not at all. We would have done so, if we wanted to. We have a large enough majority to do so; absolutely. [Interjections.] We would. [Interjections.] I'm telling you.
Order, hon members!
You don't know. [Applause.] Thank you, hon Speaker. [Applause.]
Mr Speaker, in the hon Minister Rabede's discussion document, or in his announcement about the discussion document, on the transformation of the judiciary, he noted that the review would be carried out both by independent institutions and by the executive. This was despite a previous statement last year in which he said it would be carried out only by an independent institution.
In the President's reply to the state of the nation debate, he committed himself to the separation of powers and to upholding this separation. Will the President not concede that the executive's decision to play a part in this review is itself a serious infringement of the separation of powers? And if so, will he insist that only an independent institution should conduct the review, because, how, for example, would this government feel if the judiciary were to decide to do a wholesale review of its policies and its procedures and its programmes of action? Thank you very much, Mr Speaker. [Applause.]
Hon Speaker, I have just said that these three arms have different functions. I don't think the judiciary would stand up and say that they wanted to review all policies. We are a government. Our functions are not the same. We are a government governing a country. That is the difference. [Interjections.]
Order, hon members! Order! Let the President be heard.
This is one of the points about which at times people say that some people want to co-govern. We are a government. What does a government do? It runs a country. It has a duty in terms of the mandate given by the people to ensure that things go according to what the people want. [Interjections.] Even though we have three arms, they don't have the same function. You cannot make comparisons in that way and say that simply because government, which is governing, wants to do certain things. If that is the case, it means the judiciary also has that right. It is not a government. I think we must make that distinction. [Applause.]
You cannot elevate people to do tasks they are not supposed to do. It is just like Parliament. Parliament has particular functions that cannot be performed by the other two arms. These functions can only be done by Parliament. That is what it is, because their independence is not absolute; it is relative. That is what it is, because we are governing a country. [Applause.] That is the reality. So, what the Minister has said is absolutely correct. Thank you, hon Speaker. [Applause.]
Ngiyabonga Somlomo, mhlonishwa Mongameli, imoto ihanjiswa egalaji ukuyoseviswa ngoba kukhona okubhedayo kuyona. Kukhona omakhenikha abakhanda imoto ngoba isuke ingalungile leyo moto. Ingabe impendulo yakho isho njalo yini; ukuthi into esiyenza la eNdlini kufanele iyobhekwa ngoba ayilungile - ukuthi idinga ukulungiswa. Usho njalo? [Uhleko.]
UMONGAMELI WERIPHABHULIKHI: Ngiyabonga Somlomo, into elingayishongo iLungu lePhalamende elihloniphekileyo wukuthi abafani abantu. Kukhona abahambisa imoto ukuthi iyoseviswa ngoba kukhona okonakele, kukhona abayihambisa kungakonakali lutho ngoba bafuna imoto yabo ihlale iqondile ithe ngqo.
Angisho ukuthi thina sithumela izinto ziyolungiswa ngoba sekukhona okonakele ngazo, cha, sizama ukwakha sakhisise isimo sokubuswa kwezwe ukuze libuseke ngendlela ephilayo. Njengoba siqhuba nje siwuhulumeni, mhlawumbe ongaphandle kukahulumeni akakuboni lokho. Kukhona izinto esibona ukuthi azihambi kahle, zifuna ukulungiswa. Kufana nomuntu onemoto, ongenayo imoto ngeke athi ayiseviswe le moto yakho, [Uhleko.] ngumshayeli oshayelayo othi manje ngiyoyisevisa manje. [Uhleko.] Injalo indaba, Gatsheni. [Ihlombe.] Siyabonga Somlomo. [Ihlombe.] (Translation of isiZulu paragraphs follows.)
[Mr V B NDLOVU: Thank you, Mr Speaker. Hon President, a car is taken for a service when there is something wrong with it. There are mechanics who repair cars when they are broken. Is that what you are saying in your response; that what we are doing here in this House is not right, therefore, it needs to be reviewed, so that we can make it right. Is that what you are saying? [Laughter.]
Thank you, Mr Speaker. What the hon Member of Parliament did not say is that people are not the same. There are those who take their car for a service when there is something wrong with it and those who take their car for a service whilst there is nothing wrong with it, the objective being that they want their car to remain in a good condition.
I am not saying that we are taking issues for correction because something has gone wrong with them. What I am saying is that we are trying to put measures in place so that we can run our country in the correct manner. Since we are doing things as government, someone who is not in government might not know why we are doing things that way. There are things that we see are not right, and need to be corrected. Someone who has no car cannot say, "let us take your car for a service". [Laughter.] It is the driver of the car who says: I am taking the car for a service now. [Laughter.] That is the issue, Gatsheni. [Applause.] Thank you, Mr Speaker. [Applause.]]
Mr Speaker and hon President ... ingxaki wena, mhlekazi, kulo rhulumente wakho kukuba nisuke nibe baninzi abantu abathetha into enye, kodwa niyitolike ngeendlela ezahlukenyeyo xa niphambi komboko, nikhuphe imiyalezo eyahlukeneyo. Kodwa ke, ndiza kubuza umbuzo oza kunceda khon'ukuze usicacisile sikwazi ukuyivala le nto namhlanje. (Translation of isiXhosa paragraph follows.)
[... a problem in your government, sir, is that there are a lot of you who would be saying the same thing but interpret it differently when you are at the podium, and in doing so convey different messages. However, I will ask you a question that will help you clarify for us so that we can be able to conclude this today.]
You were quoted in the media as having said that the primary purpose of assessing the work of the Constitutional Court was to review its powers. However, later on, government issued a statement purporting to explain your media pronouncements in that the primary purpose of this exercise was to conduct an assessment of the judgments of the Constitutional Court. Could you take the nation into you confidence, sir, by explaining what prompted this exercise in the first instance and also clarify which of the aforementioned the government intends doing?
Khawucacise ngoba ngoku siyavumisa, Nxamalala, asisaboni kakuhle. [Please, Nxamalala, give us explanations because we are relying on assumptions now and we are not satisfied.]
Thank you, hon Speaker. These different arms of government have powers. Everything they do in practice derives from their powers. If you make the laws, you use your power that you have as Parliament and you make the laws. Those who look at the laws might - and they have done so in the past - say that your laws are unconstitutional. So, in exercising your power, we have not always been accurate as this House. There are laws that have been sent back, because in the process of exercising your power, you might make mistakes, though not deliberately. The executive has been taken to task on decisions it has made on the basis of the power that it has been given by the Constitution as well.
Equally, the judiciary makes decisions - judgments - that, at times, are actually overturned by it. Other levels of court make judgments; the higher courts overturn them, saying that the judgments were not correct. So, the issue of power and decisions cannot be separated. If you say that we are reviewing and assessing whether these decisions or functions that have been undertaken - emanating from the power - are fine, it's because we just want to make sure that everything is done according to what needs to be done in the country. That is what we are saying. The very fact that this Parliament has, in fact, reviewed about 16 aspects of the Constitution tells you the story. Nothing is so perfect that it has no mistakes. Only God makes no mistakes. We make mistakes. He had to sacrifice his Son to come and help us ... "sesenze nesono". [... because we had sinned.] Thank you, hon Speaker. [Applause.]
Presidential pardons referred to in October 2010 6. Mr P J Groenewald (FF Plus) asked the President of the Republic:
What progress has been made in finalising presidential pardons of persons to whom he referred in October 2010? NO659E
Hon Speaker and hon members, following the decision of the Constitutional Court in 2010 relating to this case, the Department of Justice and Constitutional Development launched a media campaign inviting victims and interested parties to make representations in respect of 149 cases.
The response has been positive. Victims and interested parties have responded, requesting information, including concerning actual applications for pardon in respect of certain applicants. The victims and interested parties were requested to respond to the Department of Justice and Constitutional Development within 30 days.
The Secretariat recently received a letter requesting a 60-day extension from the Legal Resources Centre, acting on behalf of the SA Coalition for Transitional Justice, which consists of the SA History Archive, the Centre for Violence and Reconciliation, the International Centre for Transitional Justice, and the Khulumani Support Group. The applicants will also have 60 days to submit their replies. Once all have been processed, the Department of Justice and Constitutional Development will submit the applications to me for my final decision. Thank you, hon Speaker.
Hon Speaker, could I, at the beginning, say to the hon President that in the past the Constitution was changed four times to ensure that defection from one party to another party could take place in this House. The ANC needed 75% for that and the DA gave you that 75%, so you can count on the DA for another 75%. [Interjections.] Thank you, hon Minister. [Interjections.]
Order, hon members! Order!
I have the information that the notice was posted in October 2010 in terms of which the invitation was extended to parties to respond to the 149 cases. As you have said, another 60 days and another 60 days takes this to about April 2011. In June 2011, I posted a question for written reply in this House on the progress. Unfortunately, hon President, your department did not respond. That's a bit disrespectful towards the institution of Parliament. But if I listen to the periods you have given for responses and everything, it's almost a year from that. So could I ask the hon President, seeing that it is a year from all the responses received and all the timeframes given, when we can expect finalisation on this matter? It has already been going on since 2007. Thank you, hon President.
Thank you, hon Speaker. Of course, the response will depend on how quickly the process is able to move concerning the people who have asked for the extension. What we cannot do is to jump the process. We can't. Once every other thing has been done to ensure we have all the facts and completed processes in front of us, then we act. Without that, we cannot act. And I can't give an answer when this will be.
Order! I have the following names on my screen: Hon Msweli, the hon Sibanyoni and hon D Smuts, in that order. You seem to be doubting your name, hon Van der Merwe. I didn't call your name.
Mr Speaker, I am sorry, I pressed the wrong button.
Oh, you did. It looks like it. [Laughter.] Please continue.
Mr Speaker, arising from the President's response that the process actually has some bottlenecks, I want to find out from the President if there are any mechanisms he is thinking of to deal with the bottlenecks in the process, because this matter has been going on for far too long and those people are still languishing in jail. Could the President assure us that indeed this matter is going to receive his urgent attention?
Thank you, hon Speaker. Well, I am sure the hon member would not want me to break the rules, and do what I think is good for me and not follow the law and the procedure. I don't even think that I can suggest anything, because all I would be doing is saying, "This law is delaying me. Let me just do my own thing." I think we all have to respect the processes and also respect the right of people if, for example, they ask for an extension. You can't say, "Look, this thing has been here. I don't grant you ..." They are legally allowed to do so, and you have to treat them fairly.
I said earlier that democracy is time-consuming, because you have to do things appropriately, according to the law. That is what we are doing. So I can't suggest that I am going to do something outside of the law. I have to stick to the law and wait for the process to be concluded and for matters to be put before me - then I act. Thank you, hon Speaker.
Somlomo, ngithokoze uMongameli ngehlathululo yakhe ehle kangaka begodu ekarisako le. [Speaker, I would like to thank the President for his good and interesting explanation.]
The reference group was designed to complete the state of affairs that has been termed by some as the unfinished business of the Truth and Reconciliation Commission, TRC. This gave an opportunity for parties represented here in Parliament to participate in an area which is the prerogative of the President, namely to grant prior pardons, irrespective of their proportional vote or whether they were involved in conflict in the past. Hon Groenewald is a member of the Cabinet "nogal". The process is in the public domain. Isepepeneneni, ngesiKhethu. [According to my culture it is in the public domain.]
My question, President, is: Is the President aware why the hon Groenewald does not know the process and the progress made in finalising the presidential pardon, as fully explained?
Mnr die Speaker, op 'n punt van orde! [Mr Speaker, on a point of order!]
Yes, you are not a member of the Cabinet. You want to correct something: that you are not in the Cabinet yet.
Speaker, I just want to ask whether it is in order that an uninformed Member of Parliament can come and talk nonsense in Parliament. [Laughter.]
Correction, Speaker. He is a leader. That's what I wanted to say. It was a slip of the tongue, hon Speaker.
Okay, hon member. You are demoted and no longer a Cabinet member. [Laughter.]
Thank you, hon Speaker. Of course, the hon member was asking the question because I'm sure he wants to know ... I think I have given him the answer. He must be happy now, because he has the answer. He is now informed; because I cannot, to satisfy desires, break the rules. I can't. And I have just explained what the process is and where it is. I am sure he is happy now. Thank you. [Laughter.]
Mr Speaker, there is another reason why the finalisation may, in this case, take longer than any of us would want, apart from those that the President has very properly invoked. The process may take longer and it can't, in your words, sir, be jumped. I agree with you.
But that reason is one on which I really would like to hear the President's views. Now, given the hon President's assurances that his recent controversial remarks on the Constitutional Court's powers of judicial review did not mean anything or didn't mean what they appeared to say, does he therefore accept that his decisions on these pardon applications will be capable of being subjected to judicial review?
I ask this specifically because the hon President, together with the hon Minister of Justice and Constitutional Development, in the very Constitutional Court case to which he has just referred: Albut, challenged - you challenged, sir - the contention that the presidential pardon power is administrative action and therefore reviewable. I did accuse you at the time of behaving like Henry VIII in this respect, but in other respects also, except that I complimented you for your civilization in those other respects, as against the English King.
This addresses the point of where we all derive our powers from. The fact is that the hon President cannot claim the power of pardon from ancient royal prerogative. The Constitutional Court has said that regardless of the historical origins of the concept, the President derives this power not from antiquity but from the Constitution itself - it is that Constitution that proclaims its own supremacy. Should the exercise of the power of pardon in any particular instance, whether it is argued to be administrative or executive action, be such as to undermine any provision of the Constitution, that conduct would be reviewable. Do you agree, sir, that your impending decisions on these pardons - and they are difficult decisions - will be capable of being subjected to judicial review?
Hon Speaker, well, I thought that all decisions taken by these arms ... individuals serving in these arms ... when there are parties that feel these decisions are not fair, that they always take them further. I don't think this excludes the President. I don't think so. I think we will take the decisions unless the Constitution says we cannot review decisions taken by the President, which is a different matter. This is because if that is explicit in the Constitution, then it means we have to follow the Constitution. That's why even decisions taken by judges, who are supposed to know it all, you have other judges who come along and say the decisions were wrong. I am saying this in terms of a constitutional democracy. I don 't think you can say that there are decisions that are not reviewable at all, because as long as there are citizens who feel aggrieved about your decision, what must they do? There must be recourse. There is no doubt about it. Absolutely. Thank you, hon Speaker. [Applause.]
Order! I thank the hon President. Hon members, that concludes questions to the President.
Hon Speaker ...
Yes, sir. Let me finish. Hon President, you are free to leave us if you wish to, but you are also free to stay and we encourage you to stay. [Laughter.] Hon member?
Hon Speaker, I would like to find out whether it is in order for an hon member of this House to take photographs in this House. [Interjections.] I can actually point out ...
It is absolutely not allowed according to the Rules, unless they are amended. The ones we have - the 7th edition - says no. If there are any pictures taken we would like whoever took the pictures to delete the pictures. [Interjections.]
Order, hon members! Order! We now come to notices of motion. See also QUESTIONS AND REPLIES.