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CERTIFICATION OF THE CONSTITUTION
A. Chapter 8: Section
129(1)(2)(a) and (b) and (3) -- Provinces
B Chapter 3: Section
51(1)(2)(a)(b) and (3) -- Parliament
C. Chapter 2: Section 7 and 8(1) --
Bill of rights
D. Chapter 1: Section 1 and 2
I, the undersigned Mr.
Mtshetsheleli Gladwin Nqontja of the above mentioned address whose particulars
appear herein wishes to object
to the certification of the new Constitution on
the grounds that it does not comply with the following Constitution Principles.
May I, with all due respect, draw the Constitutional Court’s attention to
the following:
- Section
129(1)(2)(a)(b) and (3) of Chapter 8 ; and
- Section
51(1)(2)(a)(b) and (3) of Chapter 3 does not comply with Section 7 and 8(1) of
the Bill of Rights. Chapter 2 and Sections
1 and 2 of Chapter 1 of the Founding
Provisions of the new Constitutional Principles:
Grounds for
the Objection:
- (Privileges
and immunities of members) Section 129(1) (a)(b) and (3) says: Members of a
provincial legislature have freedoms of speech
and debate in the provincial
legislature and in committees subject to its rules and orders. (2) Members of
Provincial Legislatures
are not liable to civil or criminal proceedings, arrest,
imprisonment or damages for -- (a) anything they have said in, produced
before,
or submitted to their provincial legislature or of its committees or -- (b)
anything repeated as a result of anything that
they have said, produced or
submitted -- (3) other privileges and immunities of members of the provincial
legislatures may be prescribed
by legislation and;
Section 51(1) of Chapter 3 (Parliament), (2)(a)(b) and (3) say: Members of
the National Assembly have freedom of -- speech and debate
in the Assembly and
in its committees, subject to its rules and orders. (2) Members of the National
Assembly are not liable to civil
or criminal proceedings, arrest, imprisonment
or damages for (a) anything they have said in, produced before, or submitted to
the
Assembly or any of its committees or -- (b) anything revealed as a result of
anything that they have said, produced or submitted.
(3) Other privileges and
immunities of members of the National Assembly may be prescribed by national
legislation.
The Relevant Constitution Principles with which the above
provisions does not comply:
Section 1 of the Founding Provisions
says: The Republic of South Africa is one sovereign democratic state founded on
a commitment
to achieve equality, to promote and protect human dignity, and to
advance human rights and freedoms. Section 2 (Supremacy of the
Constitution)
say this Constitution is the supreme law of the Republic binds the Republic, its
institutions, its citizens and all
persons within its borders, law or conduct
inconsistent it is invalid.
Section 7 (State’s duty to respect and
protect rights) says the State must respect and protect the rights) in the Bill
of Rights.
Section 8(1) says: Everyone is equal before the law and has the
right to equal protection and benefit of the law.
Section 51(2)(a) and
(b) gives privileges to members of the national assembly and section 129(2)(a)
and (b) gives members of the provincial
legislatures privileges which are
inconsistent to Sections 1 and 2 of Chapter 1 and Sections 7 and 8(1) of the
Bill of Rights. That
means Sections 51(2)(a) and (b) are invalid. Sections
51(2)(a) and (b) of Chapter 3 and Section 129(2)(a) and (b) of Chapter 8 are
in
violation of a Bill of Rights and a rule of law, subordinating individual rights
to those of the State.
Therefore, an equally important challenge facing
our country is the restoration of the moral order. Equal clauses must have been
applied to members of the National Assembly and Provincial Legislatures because
members of Parliaments must be held responsible for
their actions as much as the
law applies to every member of society. It must be noted that lawlessness
prevailing in this country
today has its roots in a society fashioned by a
system which paid lip service to the rule of law, and where human rights were
violated
with impunity.
In conclusion: It was with absolute disbelief
that ...[page cut off] back the Acting Attorney General of Gauteng ..[page cut
off]
effect excusing and justifying the ‘Shell House’ shoot-[out]
and subsequently unfortunate admission of liability by President
N.R. Mandela --
putting this down as self defence. The Attorney General should know; as
...[page cut off] first year law student
will tell you that; the law of
self-defence has strict limitation. It allows a person being attacked to use
only such force as
is reasonably necessary to defend oneself. The amount of
force used to defend oneself must be commiserate with that applied by the
attacker. The Acting Attorney General must still explain to society ..[cut off]
heavily armed ANC security guards on the upper ...
[page cut off].
Zulu
marchers on the street -- so as to invoke the right to self defence as allowed
by law. In a civilized State, President Mandela
would have immediately been
charged by his own attorney general with serious criminal
offences.
Section 51(1)(2)(a) and (b) and (3); Section 129(1)(2)(a) and
(b) and (3) of the respective Chapters which affords members of parliaments
protection infringe on fundamental human rights of victims granted in terms of
Section 1 and 2 of Chapter 1 and section 7 and 8(1)
of Chapter 3. Up to now,
President Mandela has not furnished victims of Shell House with [illegible] of
his speech in Parliament
as required but Section 32(1)(2) of Chapter 2. For
South Africans to survive as a stable society there must be laws. These must
be
known, equal, consistent and must have consequences. No one should be above
the law, even the 490 members of the National Assembly.
It is patently obvious
to society, the victims and the outside observers that members of the
legislatures regard themselves above
the law - thanks to Section 51(1)(2)(a) and
(b) and (3) and Section 129(1)(2)(a) (b) and (3) of Chapters 3 and 8. This
sections
in the new Constitution is inherited from the past apartheid regime, a
system which paid lip service to the rule and where human
rights were violated
with impunity. This is costing our society dearly. The law in this country is
still in disrepute and the evidence
is there for all to
see.
MTSHETSHELELI G NQONTJA
27 may 1996
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