INFORMATION SERVICES: RESEARCH
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17 September 2002
SUMMARY OF SUBMISSIONS TO THE
JOINT CONSTITUTIONAL REVIEW COMMITTEE
Section 45 of the Constitution of the Republic of South Africa requires the National Assembly (NA) and the National Council of Provinces (NCOP) to establish a joint rules committee to make rules and orders concerning the joint business of the two Houses. This includes rules and orders to establish a joint committee to review the Constitution at least once per year.
Pursuant to this Constitutional mandate, Joint Rule 97 of the Joint Rules of Parliament establishes the Constitutional Review Committee, which must review the Constitution at least once a year. In terms of Joint Rule 102 the Committee must report on its review to the two Houses. To enable the Committee to execute this task, Joint Rule 102 empowers the Committee to:
The following is a summary of the submissions that have been received during 2002.
2. PROTECTION OF RIGHTS AFFECTED BY SECURITY AND SECURITY RELATED LEGISLATION
Submitted by GAB Dijkman, RR Galpin, P Heitman, E Kapp, J Labuschagne, C Massella, G Sothern, LJ Stander, C van Bergen and CG Voigt.
The following rights, which are affected by the Firearms Control Act, 2000 (Act 60 of 2000) and the Prevention of Organised Crime Amendment Act, 1999 (Act 24 of 1999), should be firmly entrenched in the Constitution:
The Firearms Control Act, 2000 has removed the following rights:
The Prevention of Organised Crime Amendment Act, 1999 allows the police to confiscate everything, including bank accounts, based on the mere suspicion of the contravention of the Act. Without access to funds, the accused will be unable to defend him/herself.
The Constitution is supposed to protect the rights of citizens, against unlawful or unreasonable actions by the State or other people. The provisions of the Fire-Arms Control Act, which provides for search and seizure without a warrant and appropriation without compensation violates the Constitutional rights to:
The fact that the Bill allows police to search premises without a warrant opens the process up to abuse by police. The legislative process should be strengthened so that legislation cannot be passed on a simple majority of one party.
It is submitted that the following clauses of the Firearms Control Act are unconstitutional: search and seizure without warrant, confiscation of lawful property without compensation, taking of blood, semen and DNA samples without consent and excessive punishment for minor infringements of the law.
3. PRIVATE OWNERSHIP OF FIREARMS
Submitted by R Aylward, A Backman, H Banfield, WG Bartholomew, C Barata, U Basson, HJ Bester, RD Boothroyd, W Brider, FW Briel, A Brown, JP Carstens, I Claims, PJ Coetzee, C Cram, DW de Goede, W de Waal, L Diederiks, W Edmunds, FRL Eksteen, J Eschenburg, M February, S Ford, H Fourie, K Galpin, F Geldenhuys, B Gijsbertsen, D Gold, D Groenewald, J Groenewald, JM Hamilton, QW Harris, ML Hedington, J Hershbaum, JJC Hunter, J Jackson, PA Jackson, T Jackson, L Jacobs, SP Jansen van Vuuren, N Jones, VA Jonker, J Joubert, R Khan, M Kitching, H Kleingeld, E Kotze, M Kunhardt, P la Grange, AS Louw, MD Meyer, PN Moss, SG Murphy, C Myburg, W Oosthuizen, I Osman, L Pellencin, L Ridge, AD Slabbert, JC Smit, R Smith, D Strydom, E Summerson, MD Thomas, C van der Merwe, L van Schalkwyk, M van Wyk, PA van Wyk, J Wheeler, MF Winter and J Wood.
The right to private ownership of firearms should be protected in the Constitution. The following suggestions are made by proponents for the formulation of such a right in the Constitution:
There are a number of submissions that vehemently request that serious consideration be given to the explicit protection of the right of law-abiding South African citizens to possess firearms for legitimate purposes, such as the protection of self, property and family, and for hunting. It is further proposed in the submissions that this right should be subject to certain limitations, like exclusion of persons guilty of serious crimes, but it must be stated that the right to possess firearms shall in no other way be infringed upon.
The various submissions provide the following reasons for the right to bear firearms
4. RIGHTS OF ARRESTED, DETAINED AND ACCUSED PERSONS
Submitted by ND Mmbengwa.
Section 35 of the Constitution establishes certain rights with regard to the arrest and detention of individuals. It requires that individuals be informed about their right to remain silent, that they are not forced to make any confessions or admissions, and that they must be brought before a court as soon as reasonably possible. It requires that detainees be informed of the reasons for their detention, that they have access to legal representation, that they are able to challenge the lawfulness of their detention before a court, and that the conditions of their detention do not violate their human dignity. Section 35 also establishes certain procedures to ensure that every accused person has a right to a fair trial.
The following changes have been proposed with regard to arrest procedures under section 35(1) for an individual suspected of committing a serious crime:
The following changes have been proposed with regard to detention procedures under section 35(2) for an individual suspected of committing a serious crime:
The following changes have been submitted with regards to the right to a fair trial under section 35(3):
5. PARDONING OF OFFENDERS
Submitted by R Aylward.
The government is viewed as disregarding the rule of law and recommendations of stakeholders, by pardoning for political reasons a large number of prisoners convicted of serious crimes. It is argued that those convicts pardoned by the government did not receive pardon from the Truth and Reconciliation Commission (TRC). The recommendation is that the government and Parliament are not above the law.
6. RIGHT TO LIFE AND DEATH PENALTY
Submitted by H Donde, H van der Walt and Radio Pretoria.
Section 11 of the Constitution states that everyone has the right to life. Presently this basic right to life is interpreted mainly in the favour of the criminal. The right to life of the victim and the community are disregarded. Violent crimes against children, women, pensioners and people on farms make it necessary that the death penalty be reinstated.
In terms of section 205(3) the police services "are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law". The police cannot succeed when the judiciary is unable to apply appropriate punishment for violent crimes. The level of safety and security in the country has deteriorated to such an extent that even large numbers of policemen are murdered.
The death penalty should therefore be reinstated. Judges must have the option to apply the death penalty in serious cases of violent crimes as a deterrent and to permanently remove such criminals from society.
7. POLITICAL RIGHTS/ELECTORAL SYSTEM
Submitted by AJ Lima Saúde and R Smith.
It is reported that public representatives do not represent the interests of their constituencies as they are not directly accountable to any constituency but to the heads of their political parties. This concentrates power in the hands of party leadership rather than the people.
A more direct constituency-based electoral system is proposed rather than a party list system. Elected officials must be accountable to local communities to ensure the smooth running of democracy and the dispersion of decision-making processes.
Any political party, organisation or individual should be entitled to request the government to hold a national/regional referendum on a certain matter if they can obtain a minimum amount of support in accordance with prescribed procedures within a specified period, e.g. 500 000 signatures or 1% of registered voters within a period of 12 months. The government should then be obliged to call a referendum on the issue, for which a clear majority vote (50% of the votes plus one vote) would be required.
Election procedures to ensure a clear majority
In some European countries, e.g. Italy, the formation of coalition governments has become a frequent occurrence as no political party can obtain a clear majority in elections. The need for frequent elections due to the break-up of these coalition governments results in a waste of time, money and resources, and also limits government efficiency. Such a situation should be prevented in South Africa through election procedures to provide for a second round of voting during a general election. If no party can obtain a clear majority during the first round of voting, the two largest parties should compete in a second round of voting two weeks later, so a majority government can be elected.
8. JUDICIAL SYSTEM
Submitted by AJ Lima Saúde.
Changes to the Constitution are proposed to allow for the following improvements to the operation of the judicial system:
Time frame for hearing of court cases
People are often denied their rights to justice due to the long time it takes before the court hearings take place. These delays are often the result of stalling by the accused, attempting to win the case by forcing the other party to withdraw due to the high costs of the long legal process. There should thus be a time limit on the legal process, requiring cases to be heard in a court of law within a shorter period, e.g. within 12 months.
Allowing the submission of recorded testimony
Although the witness protection programme allows for the protection of witnesses in criminal cases, the programme is not always successful and witnesses are "killed before they can testify in the court case". To avoid these situations, the testimony of witnesses should be recorded and verified before the trial and before the witness is named. In case of threats to the life of the witness, or if the witness is killed, the submission of these recorded statements to the court should be allowed.
Submission of evidence acquired illegally
In many cases criminals cannot be prosecuted, as illegally acquired evidence could not be submitted to the courts. Evidence that has been acquired illegally (e.g. finding a gun without a search warrant) should be allowed, as long as such evidence does not turn out to be false and if that evidence has not been obtained through the use of force.
Submitted by H van der Walt and Radio Pretoria.
Section 9 of the Constitution provides for the equality of all citizens before the law, and that everyone has the right to equal protection and benefit of the law. It determines that the State or any other person may not discriminate unfairly against anyone. In order to promote the achievement of equality, section 9(2) provides for legislative and other measures that may be taken to protect or advance persons or categories of persons that may have been disadvantaged by unfair discrimination.
The qualification to this right in section 9(2) of the Constitution should be removed, as equality as a fundamental right cannot be qualified in an open and democratic society. This clause has provided a window of opportunity to promote affirmative action since 1994. However, this qualification allows for discrimination between race groups and should be removed. If not removed, it should be replaced by a "sunset clause" for when equality will be fully restored. It is proposed that 2003 would be an appropriate year for the implementation of the "sunset clause". Empowerment of the disadvantaged must continue, and must be addressed in a creative and practical way without violating the constitutional rights of other people, i.e. without discrimination.
10. THE BILL OF RIGHTS
Submitted by AB Augustine and ERG Keswa.
The provisions of the Bill of Rights are perceived to be far too liberal in the present South African context. A submission is made for the review of the Bill of Rights because it does not give adequate and "forceful protection to law-abiding citizens". The argument is that persons involved in serious crimes, like murder, hijackings, armed robberies, rapes, fraud and corruption know that they can acquire the services of good lawyers to avoid being convicted and sent to jail. Criminals use proceeds of crime to pay for legal defence.
The perception is that the government and its agencies are constrained by the Constitution and the Bill of Rights when it comes to dealing with crimes of such magnitude. There is also a perception that even judges and magistrates are experiencing difficulty in balancing the interest of justice and the rights to personal liberty. The suggestion therefore is that persons who are involved in serious crimes must "be on the receiving end, that is, they need to be stripped of their legal rights". It is believed this will act as an example to others who think they can get away with criminal activities. This will also indicate that Government is serious in its duty to protect law-abiding citizens. In turn, this will give this country a strong and positive image.
There is also a view that the Bill of Rights needs to be reviewed until such time that serious criminal activity is substantially reduced and the South African society has regained its moral foundation. There is a suggestion that the Bill of Rights needs to be temporarily amended to allow for the following:
11. INCLUSION OF RESPONSIBILITIES WITHIN BILL OF RIGHTS
Submitted by Father B Hinwood.
The scope of the Bill of Rights should be extended to also include Responsibilities, i.e. the Constitution should contain a "Bill of Rights and Responsibilities".
Unqualified rights can lead to many difficulties, and should therefore be balanced by a corresponding responsibility in relation to that right. The recent case about the "hate" reference to Indians in a song is an example. The unqualified "right" to freedom of speech had led to many difficulties for the oversight bodies that have to monitor this. This right to freedom of speech therefore has to be balanced by the responsibility of spreading only that which is in the interest of the common good and the building of the individuals and groups which constitute our South African community. Apart from this example, virtually every right should have its responsibility qualified in order to get some sort of balance back in the legal system.
12. TRADITIONAL AUTHORITIES
Submitted by Inkosi Mpiyezintombi Mzimela of the National House of Traditional Leaders and Gourikwa Huis.
Section 211 of Chapter 12 of the Constitution provides for the recognition of Traditional Leaders. Section 212 provides for the Role of Traditional Leaders and states that national legislation may provide for Traditional Leadership as an institution at local level on matters affecting local communities. Subsection 2 provides that national or provincial legislation may provide for the establishment of Houses of Traditional Leaders.
National House of Traditional Leaders
The National House of Traditional Leaders as established by Act 10 of 1997 makes its submission with regard to the referral of Parliamentary Bills to the Houses of Traditional Leaders where they exist. The submission brings attention to the provisions of the Interim Constitution (Act 200 of 1994) by quoting the following two Sections:
Section 183 (2) (b) stipulates that any Provincial Bill pertaining to traditional authorities, indigenous law or such traditions and customs, or any other matters having a bearing thereon, shall be referred by the Speaker of the Provincial Legislature to the House for its comments before the Bill is passed by such legislature. Furthermore, section 184 (5) (a) stipulates that any Parliamentary Bill pertaining to traditional authorities, indigenous law or the traditions and customs of traditional communities or any other matters having a bearing thereon, shall, after having been passed by the House in which it was introduced, but before it is passed by other House, be referred by the Secretary to Parliament to the Council for its comments.
The submission contends therefore that the Interim Constitution as quoted above has compelled both the Provincial and the National Parliament to refer Bills pertaining to traditional authorities, indigenous law or such traditions and customs, or any other matters having a bearing thereon, to the Provincial and the National Houses of Traditional Leaders before being passed into law.
The concern of the Traditional Leadership is that the Final Constitution of the Republic of South Africa (Act 108 of 1996) unfortunately does not have similar provisions as in the Interim Constitution, except to recognise the existence of Traditional leadership. As a consequence of this omission, it is submitted that this state of affairs is hampering the Houses of Traditional Leaders in making their informed inputs to Parliamentary Portfolio Committees, since they rely on newspaper advertisements, thus disabling them from presenting well researched submissions on particular subjects affecting traditional leaders due to stringent deadlines.
With regard to the submission in respect of suggested amendments to Chapters 7 and 12 of the 1996 Constitution, the Coalition of Traditional Leaders raised the point that on 30 November 1999 at a formal meeting between the Coalition of Traditional Leaders and a delegation of Ministers headed by the Deputy President, Mr. Jacob Zuma, which was appointed by Cabinet to negotiate with traditional leaders, an agreement was reached that the above amendments would be effected to empower Parliament to vest local government powers and functions in traditional authorities. It is submitted that on 16 January 2000, the Coalition of Traditional Leaders formulated proposed amendments and handed them over to the President Thabo Mbeki in order to facilitate government’s action in fulfilment of the agreement reached on the meeting of 30 November 1999.
The National House of Traditional Leaders and the Coalition of Traditional Leaders made the following proposals for consideration of the JCRC:
Preamble to the Amendment Bill to provide:
"To amend the Constitution of the Republic of South Africa, Act 108 of 1996; to provide for certain local government powers of traditional authorities, subject to applicable legislation and customs."
Be it enacted by the Parliament of the Republic of South Africa:
Section 155 of the Constitution of the Republic of South Africa, Act 108 of 1996, hereinafter the Principal Act, is hereby amended by:
 adding the words , "subject to subsection ," in subsection  after the words "categories of municipalities"; and
 adding the following subsection:
" Category A and Category C municipalities may comprise of a traditional authority which, subject to any applicable law and section 156, may in its area of jurisdiction exercise the powers and functions of a Category B municipality in lieu thereof or in lieu of the relevant powers and functions of a Category A municipality, as the case may be."
Adding the following subsection hereby amends section 156 of the Principal Act:
" This section shall apply also in respect of traditional authorities, which the applicable law may aggregate for the purposes of this Chapter".
Adding the words "also as a local government structure" after the words "may function" in subsection [a] amend Section 211 of the Principal Act.
Furthermore, that the Memorandum to the proposed Amendment Bill should provide the following:
The Bill enables national legislation to preserve or restore the local government powers and functions exercised by traditional authorities in terms of legislation, indigenous laws and customs and excludes certain corresponding powers of municipalities in the areas of traditional authorities.
Clause 1 enables national legislation to recognize the local government powers and functions exercised by traditional authorities in terms of indigenous laws and customs and exclude the corresponding powers of municipalities in the areas of traditional authorities up to the level of those exercised by a Category B municipality.
Clause 2 extends to traditional authorities the provisions relating to municipal powers and functions, and clarifies that the law may establish regional traditional authorities as the entities that deal with local government powers and functions.
Clause 3 clarifies that traditional authorities may exercise local government powers and functions in addition to those exercised in respect of other matters.
Recognition of the Khoisan Nation
The proposed amendments refer to Chapter 12 and 14 of the Constitution.
The submission requests that the Khoisan nation be recognised as the first indigenous nation of South Africa. In addition, the leaders of the Khoisan nation should receive the same recognition and powers given to traditional leaders in Chapter 12 of the Constitution.
It is therefore proposed that Chapter 12 should be amended to make provision for the establishment of houses of traditional leaders on national or provincial level for the Khoisan as first indigenous nation. The Convention on Indigenous Nations in Independent Countries should also be incorporated.
In terms of Chapter 14 an amendment is suggested to provide for funding to the houses of traditional leaders as well as to the proposed houses of first indigenous nation (the Khoisan). This funding should be similar to the right for funding for political parties provided for in Chapter 14.
13. LANGUAGE RIGHTS
Submitted by Sepulana Language Development Committee.
The Sepulana Language Development Committee (SLDC), formerly the Mapulaneng Crises Committee (MCC), provided the following submission. The SLDC states that the Sepulana language is an indigenous language but that the Constitution does not recognise its existence or development. They submit that many people worship their ancestors in this language, including Sesotho and Sepedi speaking people. It is asserted that this non-recognition extends to religious and cultural beliefs.
It is argued that the Sepulana language does not feature in the following sections:
The SLDC therefore requests the Joint Constitutional Review Committee to include the word sePulana under section 6 (1) of the Constitution which will then read as follows: "Sepedi, Sepulana, Sesotho" etc.
14. EMPLOYEE RIGHTS
Submitted by J Duckitt and R Pretorius.
1. Mr John Duckitt speaks to the issue of the responsibility of Parliament to the Constitution. He submits that the Constitution is the highest authority and that all laws and regulations should be subjected to the provisions of the Constitution.
He avers that the Employment Equity Act contravenes the Constitution in that it provides for employers to employ a workforce that reflects the demographics of the population. He further argues that the previous government’s policies similarly limited employment opportunities. He suggests that the limitation of opportunities has become a law of general application in that educational institutions, sports bodies as well as businesses are subjected to affirmative action. He is of the opinion that affirmative action is synonymous to Apartheid. Hence, he submits that Affirmative Action and the law that provides therefore, is in contravention of the Constitution. Furthermore, that there is a gap between the legislator, which is Parliament; the reviewer of the law, which is the Constitutional Court; and the citizen.
2. Mr R Pretorius refers to section 83A (1) of the Labour Relations Act. Section 83A (1) states that until the contrary is proven, a person who works for, or provides services to any other person is presumed to be an employee, regardless of the form of the contract. Mr Pretorius is of the opinion that this section in the Labour Relations Act is problematic to our legal system as it puts the onus on the employer to prove that the person employed is in fact not an employee but an independent contractor. He argues that this section change the basis of the law to the effect that "everyone is guilty until proven innocent. "
He proposes that the concept of "independent contractor" be removed from the Labour Relations Act thereby changing the presumption as to who is an employee.
Furthermore, he refers to the "right to freedom of association". He argues that the provision in the Labour Relations Act that allows the Minister to extend agreements concluded at Bargaining Councils to non-parties is unconstitutional. He avers that the Labour Relations Act refers to "volunteerism" yet the Minister of Labour is afforded the power to extend agreements concluded at Bargaining Councils to non-parties. He is of the opinion that people are forced to ascribe or be part of an agreement without consultation. He submits that the right to freedom of association should not allow for the unilateral extension of labour agreements to non-parties.
15. EDUCATIONAL RIGHTS
Submitted by S Amstrong.
It was proposed that education for all should be free. Acquired Immune Deficiency Syndrome (AIDS) orphans should also be provided with free education. Free education should be provided in order to break the cycle of poverty. Moreover, it is suggested in the submission that a daily piece of bread should be given to every child who attends school.
16. ANIMAL RIGHTS
Submitted by Rashid Patel and Company.
The submission refers to the fact that there is no constitutional provision affording rights of humane treatment to animals and views it as a lacuna in the Constitution. It is suggested that this impacts on the way people view animals. It is therefore argued that legislation regulating the treatment of animals is insufficient. It is proposed that national legislation should create a realistic sustainable Act of Parliament and should provide for the following:
17. ABOLITION OF INCOME TAX AND USURY
Submitted by Abolition of Income Tax and Usury Party.
This submission proposes amendments to the Finance Section of the Constitution.
It requests that sections 223-225 be replaced by the following:
18. RELIGIOUS SUBMISSION
Submitted by United Christian Action.
A submission was received that addresses the many concerns of the religious community. It was argued that the following principles contained in the Constitution, including the clauses on abortion, rights of criminals and prostitution need to be reviewed. It is suggested that the Constitution needs a stronger religious approach. The submission proposed the inclusion of "Almighty God" in the Preamble of the Constitution.
19. REVISION OF THE CONSTITUTION
Submitted by A Plomaritis.
The following submission recommends unique revisions to the Constitution. The Constitution should be completely revised in the context of the state working towards a uniform State. The Constitution should contain the following 8 principles:
State composition and Identity
Nationality (Citizenship) and Residency
Subject to certain requirements in the law regulating residency and citizenship within the borders of the State:
There should be no official language or languages. People should be allowed to speak their preferred languages. Non-verbal communication and interpretation services should be provided where needed.
The following State structures should be created:
Electoral System and Appointments
State Enterprises and Services
There must be no State enterprises. However, the State should provide, free of charge, the services that the business sector and the NGO sector cannot provide to citizens and residents.
The Income Tax Act should levy income tax on the incomes of individuals on a flat income tax rate.
The State should have only bi-lateral relations with other states to facilitate trade and other exchanges between the State and other States, and to contribute towards sustainable socio-political economic development in the State and the other States.
20. LAWS TO BE SUBJECTED TO CONSTITUTIONAL COURT SCRUTINY
Submitted by J Duckitt.
Every law passed by Parliament should be subjected to scrutiny by the Constitutional Court before it goes to the President for assent. Should the Constitutional Court find the provisions of the law to be contrary to the spirit of the Constitution, Parliament should not be allowed to enact the proposed law unless the necessary amendments are effected.
21. FREE ACCESS TO THE CONSTITUTIONAL COURT
Submitted by J Duckitt.
The Constitutional Court should be freely accessible to every citizen, without having to be represented by expensive legal counsel. This right should be available especially if the citizen feels that his or her Constitutional rights have been infringed upon, whether by a law, Government or fellow citizen.
22. INTERACTION OF THE JOINT CONSTITUTIONAL REVIEW COMMITTEE WITH THE PUBLIC
A number of submissions suggested that there be interaction between the Joint Constitutional Review Committee and the public. The proposed interaction could vary from the personal hearings of evidence to Committee members visiting communities to inform them about the preparation of submissions.
23. IMPACT OF SCHEDULE 5 COMPETENCES ON ARCHIVES, LIBRARIES AND CULTURAL MATTERS
Submitted by the Ministry of Arts, Culture, Science and Technology
Report to MINMEC: 10 September 2002
The Report focused on Schedule 5 problems affecting archives, culture, libraries and museums. Its purpose was to inform MINMEC of progress made since the meeting held on 19 March 2002 regarding the possible implementation of the three options tabled at the meeting namely:
1. Option A: Constitutional Amendment
2. Option B: Own Provincial Legislation
3. Option C: Financial monitoring and control
1. Option A: Extensive discussions were held with the Department of Arts, Culture, Science and Technology (DACST) Legal Services, the Department of Provincial and Local Government (DPLG) and the Department of Justice (DOJ). It became clear at an early stage that it would not be advisable for the DACST to attempt to fast track constitutional amendments on its own. The DPLG is co-coordinating an investigation into a major revision of the Schedules of the Constitution as they relate to the allocation of legislative competencies between the three spheres of government. This will take time. Information received from DOJ indicated that this might be delayed until a standard system for effecting constitutional amendments has been developed.
2. Option B: After discussions with the DACST Legal Services and with DPLG, it became clear that the option of generic legislation, or encouraging own legislation, is very complex. The complexity is due to the differences between the provinces in terms of their capacity and in terms of the legislation that they have inherited from former administrations. It is simply not practical for a single template act to be drafted to fit all provinces.
3. Option C: Following the route suggested by the Treasury is critically important to stabilizing the situation. It should be critically viewed, regardless of the success or otherwise of Options A and B. Provinces are responding slowly to requests for information on the provincial and local government expenditure on libraries, museums and cultural services. It is essential that this be fast-tracked. Discussions with the National Treasury and the DPLG also revealed that the effect of Schedule 5 on the delivery of Archival Services could be remedied. This is due to the Minister having power under existing legislation to monitor compliance in all spheres of government.
A series of meetings and discussions have were held with the following role players:
The objectives of these discussions were:
The Current Situation
The Director- General of DPLG is the Accounting Officer in terms of the Division of Revenue Act. The DG, in terms of his official capacity as Accounting Officer, has to authorize the transfer of funds when functions shift between local and provincial spheres. The DPLG has indicated that their DG will send the DG of DACST a letter stating that such transfer will not be authorized during the current financial year. This would ensure that the status quo be retained.
Discussions with the DOJ’s decision on Parliamentary Legislation, indicate that the most certain and swiftest route may be for DAC to prepare a National Community Libraries, Museums and Cultural Programmes Bill in terms of section 44(2)(d) of the Constitution. In terms of this section, Parliament may pass legislation in accordance with a section 76(1), with regard to a matter falling within a functional area listed in Schedule 5, when it is necessary to establish minimum standards required for the rendering of standards.
The purposes of this bill would be to establish minimum standards required for rendering of services in respect of community libraries, museums and cultural programmes.
This bill, in conjunction with the intervention from the National Treasury, should ensure that the national department and provinces could continue to deliver these services at local levels in partnership with the local authorities.
The MINMEC noted the Report. It further authorized DAC to begin the consultative and drafting process leading to the tabling of a National Community Libraries, Museums and Cultural Programmes Bill.
Impact of Schedule 5 Competencies on Archives, Libraries and Cultural Matters
The problems experienced in the Arts and Culture sector regarding the alignment of legislative competencies in Schedule 5 of the 1996 Constitution are as follows:
The Department of Arts, Culture, Science and Technology states that Schedule 5 specifies that "Libraries other than national libraries" are an exclusive provincial legislative competence. In practice, and under the Interim Constitution, the Department contends that libraries were a shared provincial/local competence. Furthermore, most formerly white local authorities operated community libraries in terms of various provincial ordinances. The big cities like Cape Town, Durban, Johannesburg and Pretoria operated fully funded by the local authorities. In smaller centres there were partnerships with the provinces.
Moreover, the local authorities staffed the facilities and met recurrent costs; while the provinces subsidised the capital works, provided professional and specialised support services and undertook bulk book buying and province-wide circulation of books. According to the Department, two years ago, the cost implications of provinces taking over the function in its entirety were estimated at more than R1 billion. There is also no mechanism for ensuring that municipalities transfer assets and funds to provinces because the library function was previously funded from rates income.
The schedule specifies that "Museums other than national museums" are also an exclusive provincial competence. Although the situation is similar to libraries in this regard, the cost implications are not as severe as is the case in the libraries.
Schedule 5 specifies "Provincial cultural matters", and this poses problems with the management of community arts centres, theatres and other cultural facilities. The view by the Department of Arts, Culture Science and Technology is that cultural matters are local community services and that service delivery would be improved if there were no legal impediments to a local authority’s role in these activities.
Regarding archives, the Department contends that problems arise with the fact that whereas "archives other than national Archives" are an exclusive provincial legislative competence, national records need to be kept in provinces for better management and better service delivery. The Department is on the view therefore that a shared competence would be more appropriate. Against the above problems, the Department proposes the following amendments to the Constitution:
Proposals of Amendments to the Constitution
Option A: Archives, libraries and museums
In Part A of Schedule 5 of the Constitution, the Department proposes the formulation of the references to archives, libraries and museums to be changed from "other than national" to provincial archives/libraries/museums, or the references to archives, libraries and museums be scrapped and the section "Provincial cultural matters be expanded as follows: "Provincial cultural matters including archives, cultural programmes, libraries and museums".
In Part B of Schedule 5 of the Constitution, the Department proposes that the reference to "Local amenities" be expanded to read as follows: "Local amenities including those pertaining to archives, culture, libraries and museums", or a new section be inserted in Part B to read as follows: "Local cultural facilities, including libraries and museums". According to the Department, the purpose of this amendment will be to clarify the exercise of competencies in culture, libraries and museums between the three spheres of government so that they will be unambiguous as the competencies for sport as an example.
Option B: Own Provincial Legislation
The proposal is that the Department of Arts, Culture, Science and Technology should draft generic legislation for each province to enact before 1 July 2002 to enable municipalities to continue funding these functions.
Option C: Financial Monitoring and Control
The Department proposes that cultural issues, including archives, libraries and museums be highlighted through improvements in the budget format as suggested by the National Treasury. The view is that this will mean that expenditure in these areas can be specifically identified and monitored to ensure that provincial and local treasuries are virtually compelled to make provision for these services. For this to happen, the Department’s contention is that Treasury needs information on expenditure trends in provinces and municipalities regarding culture, libraries, museums, and the like so that they can be included in the edition of the Intergovernmental Fiscal Review. The Department states that Treasury also requires a framework document setting national, provincial and local roles in relation to these functions so that it can refine the budget format to ring fence cultural expenditure. This document could be discussed by the Director-General with the Finance Technical Committee and tabled by the Minister of Finance to the Budget Council.
affirmative action 7 language rights 9, 10, 13
animal rights 11 pardoning of offenders 5
Bill of Rights 7, 8 Prevention of Organised Crime 1, 2
citizenship and residency 13 public involvement 14
common law rights 2 referendum 6
composition of the State 12, 13, 14 religious rights 11, 12
Constitutional Court 14 rights of accused persons 5
crime 1, 2, 3, 4, 5, 6, 7 rights of detained persons 4
death penalty 5 rights of arrested persons 4, 5
educational rights 10 right to life 5
electoral system 6, 13,14 security 1, 2, 3
employee rights 10 self-defence 1, 2, 3
Employment Equity Act 10 taxation 11, 14
equality rights 7, 11,12 traditional authorities 9
financial rights 11 United States Constitution 3
Firearms Control Act 1, 2, 4
freedom of speech 8
gay rights 12
international affairs 14
judicial system 5, 6, 7, 8
Khoisan nation 9
Labour Relations Act 10