INFORMATION SERVICES: RESEARCH
Prepared by Ester May
6 June 2003
SUMMARY OF SUBMISSIONS TO THE JOINT CONSTITUTIONAL REVIEW COMMITTEE
BACKGROUND 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:
· Invite the public to submit to it written representations on any Constitutional matter.
· Identify those Constitutional matters that it intends to review, taking into account any representations received in response to its invitation.
· Consider all representations concerning matters identified by the Committee.
The following is a summary of the submissions received in response to an invitation for submissions during May 2003.
THE RIGHT TO A FAIR TRIAL Submitted by BP. Ntema, MT. Ngwenya Section 35(3) provides to every accused person the right to a fair trial. This includes, amongst others, the rights to:
· Be informed of the charge with sufficient detail to answer it, section 35(3)(a).
· Have adequate time and facilities to prepare a defence, section 35(3)(b).
· Have their trial begin and conclude without unreasonable delay, section 35(3)(d).
· Be tried in a language that the accused person understands.
It is recommended that these three sub-sections be amended by specifying the information that the accused is entitled to (i.e. the charge sheet and annexure to the charge sheet) and the time periods for preparation of trials and beginning and conclusion of a trial.
Furthermore, section 35(3)(d) should be amended to provide after the word delay, "or to have all their charges dropped if the 48 hours referred to in sub-section 35(1)(d) are not met".
Section 35(3)(k) should be amended to provide that an a accused must be tried in a language that he or she prefers.
THE PROSECUTING AUTHORITY Submitted by M. Montesh, MT. Ngwenya
Section 179 provides for the establishment of a single National Prosecuting Authority for the country. However, this section does not legitimise the Scorpions. The actions of the Scorpions are thus unconstitutional.
Section 179(5)(d) gives the National Director of Public Prosecutions discretion to review a decision to prosecute or not to prosecute after consultation and taking representations from the accused, the complainant and any other relevant person. It is recommended that this provision be amended to make it compulsory for the National Director to review decisions to prosecute or not to prosecute.
THE POLICE SERVICE Submitted by M. Montesh Section 205 provides that the national police service must be structured to function in the national, provincial and, where appropriate, local spheres of government (municipal policing). Having a police structure at local level is a waste of resources and results in a duplication of functions. It is thus recommended that this provision be amended so that the structure at provincial or local level is scrapped.
THE RIGHT TO LIFE Submitted by NK. Govind Section 11 guarantees to everyone the right to life. It is recommended that an exception be created to this right, by adding the words, "except when one is found guilty of having taken the life of another person". Thus, where a person is convicted of murder, he or she should forfeit the right to life, re-introducing the corporal punishment.
PROVINCES Submitted by NK. Govind, MT. Ngwenya Section 103 establishes the 9 provinces of the country. It is recommended that the section be amended to reduce the amount of provinces to 4 or 5. This may be done by joining or combining provinces, or by re-drawing the boundaries of provinces. This is necessary to:
· Cut costs incurred in nine-fold by all the structures required by the Constitution (i.e. premiers, provincial administrations, legislatures, departments, etc).
· Equalise the sizes of the population in provinces.
· Make the provinces more or less equally economically viable.
Provincial powers are an unnecessary repetition of the powers of the President.
CROSSING THE FLOOR Submitted by NK. Govind
Floor-crossing legislation should be amended so that a Member who crosses the floor at national, provincial or municipal level lose their seats when they cross over to another party instead of carrying the seat over to the other party.
PRINCIPLES GOVERNING NATIONAL SECURITY Submitted by Economists Allied for Arms Reduction – SA ,T. Crawford-Browne Section 198 outlines the principles that govern national security in South Africa. Section 198 (a) provides that national security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life. It is recommended that a complete reassessment take place of what constitutes defence and national security in South African circumstances.
PROTECTION OF RIGHTS AFFECTED BY SECURITY AND SECURITY RELATED LEGISLATION Submitted by the Afrikanerbond.
Chapter 2 of the Constitution contains no explicit provision respecting the privacy of the individual in his or her home. Accordingly, it is proposed that section 12, which protects the freedom and security of the person, is amended by the following addition:
‘(3) Everyone has the right to life and protection against exposure to violence, armed robbery, rape and uninvited access to his or her residence. Infringement of this right shall be deemed to be a very serious offence’.
CITIZENSHIP AND POLITICAL RIGHTS Submitted by the Freedom Front.
Section 19 of the Constitution enshrines political rights. It is submitted that section 19(3)(a) is amended to enable adult citizens from outside the Republic the right to vote.
Submitted by Women Against Community Abuse (WACA).
The submission voices its concern regarding the position of refugees and legal and illegal immigrants. It proposes that section 8 of the Constitution specifically extend applicability of the Bill of Rights to refugees and immigrants, whether legal or illegal, and that such persons be entitled to receive any applicable state grants such as the disability grant or child support grant. The submission again mentions the rights of these persons in connection with the political rights contained in section 19 of the Constitution.
The submission proposes that the political rights contained in section 19 clearly define and regulate the practice of ‘floor crossing’. In addition, it is submitted that section 19 addresses the political rights of cross-border persons.
EQUALITY Submitted by the Freedom Front.
Section 9 of the Constitution enshrines the right to equal treatment and section 9(2) provides that certain measures may be taken to promote equality. The submission proposes that application of this section is restricted by insertion of the following:
‘such measures may not discriminate or have any negative impact on any one born in or after 1985’.
Submitted by Women Against Community Abuse (WACA).
The submission proposes that section 9 concerning the right to equal treatment and prohibiting unfair discrimination on certain grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth, be extended to recognise and regulate paralegals.
HUMAN DIGNITY Submitted by Women Against Community Abuse (WACA).
The submission highlights the plight of disabled persons, especially children, who suffer further trauma at the hands of the courts when they are called on to testify about sexual abuse. Accordingly, the submission proposes that section 10 of the Constitution, the right to human dignity, be amended to make specific mention of physically and mentally disabled persons.
EDUCATION Submitted by the Freedom Front.
Section 29 refers to educational rights and section 29(3) entrenches the right to establish and maintain independent educational institutions. The submission proposes that section 29(3) is amended by the proviso that the right is exercised at own expense.
Notwithstanding this, the submission appears to support the notion of state subsidies for such independent educational institutions set out in section 29(4) but proposes that this subsection is replaced with the following:
‘The state shall not in granting aid and subsidies to educational institutions created in terms of subsection (3) discriminate against any such institution on the ground that it is under the management of a minority, whether based on religion, language or culture’.
The submission also proposes the inclusion of a new section:
‘29(5) ‘Subsidies for institutions in terms of subsection 3 will be determined by calculating a quota per pupil or student from the total allocation of state funds for education, which amount will follow the pupil or student to the institution that they attend’.
LANGUAGE RIGHTS Submitted by the Freedom Front.
Section 6 of the Constitution recognises the official languages of the Republic and section 6(5) provides for the establishment of a Pan South African Language Board.
The submission proposes that the duty of the Board to promote and ensure respect for languages used for religious purposes under section 6(5)(b)(ii) explicitly include Latin.
The submission also proposes that the Board is further empowered by the following addition to section 6(5):
‘(c) be empowered by national legislation to oblige national and provincial governments, as well as the private sector and organs of civil society to promote multi-lingualism’.
TRADITIONAL AUTHORITIES Submitted by Women Against Community Abuse (WACA)
Although the Chapter 12 of the Constitution addresses the position of traditional leaders, the submission proposes that the role traditional leaders in local government needs to be addressed in terms of Chapter 7 of the Constitution which relates to local government.
SELF DETERMINATION Submitted by the Freedom Front.
Section 235 is a general provision found in Chapter 14 providing for the right to self-determination. The submission suggests that the right to self-determination as manifested in the Constitution shall provide recognition of the notion of this right of any community sharing a common cultural or language heritage if so desired by that community. The proposal is as follows:
‘235. The right of the South African people as a whole to self determination, as manifested in this Constitution, [does not preclude] shall provide, within the framework of this right, recognition of [the notion of] the right of self determination of any community sharing a common cultural and language heritage, if so desired by that community within a territorial entity in the Republic or in any other way, determined by national legislation’.
ARRESTED, DETAINED AND ACCUSED PERSONS Submitted by Women Against Community Abuse (WACA).
The plight of mentally and physically disabled persons in negotiating the legal system is noted and, accordingly, it is submitted that section 35 of the Constitution, which sets forth the rights of arrested, detained and accused persons, should be amended to take these persons into account.
ANIMAL RIGHTS Submitted by Animal Voice and Compassion in World Farming and The Humane Education Trust.
The submission proposes the inclusion of rights of humane treatment to animals within the South African Constitution. The submission calls for animals to be reclassified as "sentient beings" with ‘intrinsic value’ in the South African Constitution. The submission points out further that a number of countries such as Germany, Switzerland, Sweden, Serbia, The European Union and India have already granted basic constitutional rights to animals.
ENVIRONMENT (Chapter 2: Bill of Rights, Section 24) Submitted by Economists Allied for Arms Reduction – South Africa (ECAAR-SA).
The submission focuses on the environment (Bill of Rights Section 24). A specific case study is used in the submission to highlight the consequences of an ammunition factory located in a residential area of one million people. In this instance, the focus of attention is on Denel: Swartklip, which is located between Mitchells Plain and Khayelitsha.
The focus of the submission encompasses the following:
· The lack of adequate waste management is a problem throughout South Africa. There is no reason to believe that the South African armaments industry is an exception to the general pattern that armaments and military operations combine to create an environmental catastrophe.
· The impact of chemical exposure for employees of Denel as well as the neighbouring communities in Swartklip and Khayelitsha has resulted in high incidences of tuberculosis and respiratory diseases.
The submission maintains that section 24 is unambiguous regarding the environment and the rights of South Africans (that industry should not be harmful to either the health of workers or the wider community).
The submission provides no concrete amendment to the Constitution regarding environmental rights, Section 24 (Bill of Rights), but rather calls for an intervention strategy to address the problems mentioned above.
PROPERTY (Chapter 2: Bill of Rights, Section 25) Submitted by Tshwane Late Land Claims Forum.
The submission calls for a deletion of section 25 (subsection 7) of the Constitution of the Republic of South Africa (Act No. 108 of 1996). Subsection 7 states that:
A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.
The submission also proposes a revoking of paragraph (c) of subsection 1 of section 2 of the Restitution of Land Rights Act (No. 22 of 1994).
Chapter 1, Section 2 reads as follows:
Entitlement to restitution
- A person shall be entitled to restitution of a right in land if –
> he or she is a person dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; or
> it is a deceased estate disposed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; or
> he or she is the direct descendant of a person referred to in paragraph (a) who has died without lodging a claim and has no ascendant who –
* is a direct descendant of a person referred to in paragraph (a); and
* has lodged a claim for the restitution of a right in land; or
> it is a community or part of a community dispossessed of a right in land after 19 June 1913 as a result of past discriminatory laws or practices; and
> the claim for such restitution was lodged not later than 31 December 1998.
The submission argues for the deletion and revoking of the aforementioned sections based on the time-frame (300 years) utilised by the colonisers to appropriate land from the indigenous peoples of South Africa. In using the above argument, the submission claims "it is therefore improper for the Parliament and Cabinet to mandate the Minister of Land Affairs and Agriculture to solve the land question within three years, that is, from 1995 to 1998. This clause must be revoked".
Submitted by the South African Constitutional Property Rights Foundation (SACPRIF).
The submission recommends the following revisions (in bold) to section 25 of the Constitution:
Section 25(3)(d) to read as follows:
· The extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and the value created thereby, as compared with the value created by individuals, and the purpose of the expropriation.
· The amount by which the property owner is relieved of conventional taxes.
Section 25(4)(b) to read as follows:
· Property is not limited to land, and Private possession of land entails the obligation to pay the rent of land in its unimproved state to the community as compensation for the publicly provided benefits received by virtue of exclusive occupation.
Section 25(5) to read as follows:
· The state must take reasonable immediate legislative and other measures, within its available resources, (such as a new clause 10) to foster conditions which enable citizens to gain access to land on an equitable basis and within a period of (say) two years.
An addition to section 25(10) should read as follows:
· (1) Notwithstanding anything contained in this Act each and every South African shall continue to have a right to the exclusive possession and use of their property. Possession and use of land and natural resources shall therefore be conditional on the payment to society of the rent that is created by the investments of the community, and by virtue of the natural qualities of the location.
(2) Primarily, and as far as possible, government shall defray the
cost of public services out of these rental or royalty payments. Conventional Taxes can therefore be substantially reduced.
The public services shall be accessible to everyone, thereby ensuring equal enjoyment of the benefits from the rents that are generated by the land and natural resources of South Africa.
Indeed this also gives a new and concrete meaning to the Preamble
"South Africa belongs to all who live in it". That is that South Africans own the Royalties that attach to all land and natural resources in undivided shares.
COMPOSITION OF THE NATIONAL COUNCIL OF PROVINCES Submitted by the National Council of Provinces (NCOP).
The NCOP proposes that section 61(2)(b) and section 62(3)(b) of the Constitution be amended.
Section 61(2)(b) provides that if the composition of a provincial legislature changes on account of, amongst others, party membership or mergers between parties in that legislature, it must within 30 days -
determine, in accordance with the national legislation, how many of each party’s delegates are to be permanent delegates and how many special delegates;
appoint the permanent delegates in accordance with the nomination of the parties (section 61(2)(b)).
Section 62(3) provides that permanent delegates are appointed for a term that expires (a) immediately before the first sitting of a provincial legislature after its next election or (b) on the day before the appointment of permanent delegates, in accordance with section 61(2)(b)(ii) takes effect.
The NCOP notes that the effect of section 62(3)(b) is that where there are any changes in a provincial legislature, in terms of section 61(2)(b), all permanent delegates including delegates whose parties were not impacted on by the changes arising from the crossing of the floor in the provincial legislature, lose their membership in the NCOP. As a result, the House has to reconstitute itself each time there are changes in the composition of the provincial legislatures.
It is thus suggested that the Constitution clearly provide that:
it is only those permanent delegates whose party’s composition is impacted on by the floor crossing in provincial legislatures, who should lose their membership of the NCOP and not all permanent delegates from a provincial legislature that has had its composition changed as a result of the crossing of the floor.
Submitted by K.D.S. Durr, MP (NCOP).
The submission requests that the impact of the crossing of the floor legislation and related law on the NCOP should be considered.
CENTRAL BANK Submitted by Economists Allied For Arms Reduction (ECAAR-SA), Terry Crawford-Browne.
Section 224 of the Constitution refers to the primary object of the South African Reserve Bank, which is the central bank of the country. It reads that the primary object of the Reserve Bank is to protect the value of the currency in the interest of balanced and sustainable economic growth in the Republic. It further states that in pursuit of this, it must perform its functions independently and without fear, favour and prejudice, but that there must be regular consultation between the Bank and the Cabinet member responsible for national financial matters.
The submission raises several concerns that go against the above provisions. These are:
· The Reserve Bank is privately instead of State owned with some 630 shareholders from the mining and finance industries, which have undue influence over the Bank. This violates the constitutional requirement that the Reserve Bank must perform its functions without favour.
· The Reserve Bank continues to subordinate the welfare of the majority of South Africans to that of the special interests groups that benefit from policies favouring both a depreciating currency and high interest rates. This is evident through the Bank rate of 13.5% as opposed to the central bank rate of 1.25% in the USA and 2.5% in Europe. High interest rates imply high risk and destroy small businesses that are the core of a prosperous economy. This results in rising unemployment and ‘shantytowns around our cities’.
· During the Truth and Reconciliation Commission’s business hearings, the Banking Council acknowledged that South African banks had, during apartheid, failed to acquire wealth for the benefit of society. They thus pledged to remedy this. However, they continue to show a lack of social commitment. For example, the 17% mortgage rate is extortionate and is intended to entrench the divides between the rich and the poor.
· The Reserve Bank is not adhering to the provision of ‘protecting the value of the currency in the interest of balanced and sustainable economic growth’. Instead, depreciation of the currency is pursued as a means of export promotion.
· The Reserve Bank’s authority to South Africa’s flagship corporations to transfer their domiciles overseas. This signals that South Africans have lost faith in their country and dramatically increased capital outflows by way of dividend payments. A connection can be made between capital leaving the country and the collapse of the Rand. Repatriation of these assets for development of South Africa would transform the country’s socio-economic circumstances and would also provide sufficient foreign exchange reserves to underpin the Rand and forestall future speculative attacks against it. It would also result in a reduction in interest rates, thus enabling economic growth toward the eradication of poverty.
The Exchange Control Act of 1961 could offer the mechanism to enforce repatriation of those assets. The transfer of domicile can still be reversed, if necessary by litigation in Europe and the USA. The exchange control department at the Reserve Bank should be able to confirm the extent of South African foreign assets held by dominant corporate groups including Anglo American Corporation/De Beers, Gencor/Billiton, Liberty Life, Old Mutual, Remgro/Richmont, SA Breweries, and Sanlam.
Submitted by Mr. V.V. Nhlabati. The suggestion is made that the Central Bank provides accessible information on its financial affairs to the previously disadvantage communities. e.g. information on personal loans for Black Economic Empowerment.
ACCESSIBILITY OF INFORMATION Submitted by Mr. V.V. Nhlabati.
The submission recommends that:
· The Constitution be available in all South African languages and be accessible to all citizens.
· The Bill of Rights be available in all languages.
· Ordinary Bills affecting provinces be accessible.
· Citizens are informed of election procedures.
· National and Provincial Cabinets’ responsibilities be transparent.
· Information on taxes is understandable.
PROCUREMENT Submitted by Economists Allied For Arms Reduction (ECAAR-SA), Terry Crawford-Browne.
Section 217(1) of the Constitution states that ‘when an organ of the state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods or services, it must do so on accordance with a system which is fair, equitable, transparent, competitive and cost-effective’.
The submission contends that the arms deal violates section 217 and is therefore unconstitutional. The ECAAR-SA is engaged in litigation against government to cancel the arms deal. According to the submission, public announcements on the arms deal stated that the procurements would be ‘affordable’ because the expenditures of R30 billion equivalent would be ‘offset’ by foreign investments and exports worth R110 billion, creating 64 165 jobs.
In accordance with the Department of Trade and Industry’s Industrial Participation Programme, offsets are required for all foreign procurements in excess of US$10 million. However, as stated in the submission, offsets are prohibited in terms of Article XVI of the WTO Plurilateral Agreement on government procurements. The submission argues that offsets are ‘notorious for market distortions and for opportunities of corruption’ (p.2). It thus argues that the arms deal has highlighted the fraudulent nature of offsets and that they do not comply with section 217.
Another example is seen in the acquisition of the new aircraft by South African Airways. The intentions are to leverage government procurements to fast track South Africa’s economic development. However, inappropriate equipment is being purchased at inflated prices.
International literature (2 submissions included) finds that offsets are inappropriate either for military procurement or for economic development. Offsets are impossible to monitor and opportunities for corruption is rife. Furthermore, the offsets do not meet the basic values and principles governing public administration as set out in section 195(1). It is said that the requirement of transparent and accountable public administration is transgressed when Members of Parliament are prohibited from obtaining details of offset contracts.
In light of the above, the submission seeks a directive from the Joint Constitutional Review Committee to the Department of Trade and Industry that offsets are incompatible with constitutional imperatives in terms of
List of Submissions Afrikanerbond
Animal Voice and Compassion in World Farming and The Humane Education Trust B.P. Ntema
Economists Allied for Arms Reduction – South Africa (ECAAR-SA)
K.D.S. Durr, MP (NCOP)
Mr. V.V. Nhlabati
National Council of Provinces (NCOP)
Tshwane Late Land Claims Forum
Women Against Community Abuse (WACA)