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 Mpumalanga Provincial House of Traditional Leaders

 

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 costagazi@gmail.com and mondemci@gmail.com.

 

The submissions were by electronic mail from costagazi@gmail.com and mondemci@gmail.com.  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 Republic of South Africa and legislation already has in place structures to deal with the issues raised in the submissions.  Furthermore, extending the powers of the Public Protector to interfere with judicial decisions would undermine the doctrine of the separation of powers. It would also not be in keeping with the principles of the Constitution.  The other view was that the appeals and review of court decisions remain effective remedies to litigants not satisfied with court decisions.

 

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 Mpumalanga Provincial House of Traditional Leaders

7

costagazi@gmail.com and mondemci@gmail.com

8

Mr Terezakis

9

Mr BB Ngobese