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The Environmental Law Association
Durban
31 May
1996
CERTIFICATION PROCEDURE: OBJECTION
The
Environmental Law Association of South Africa hereby objects to the manner in
which the environmental rights clause (section 24)
of the final Constitution was
formulated. It is our submission that the procedure in terms of which it was
adopted by the Constitutional
Assembly does not comply with principle II of the
Constitutional Principles embodied in the Schedule 4 of the Interim
Constitution.
That principle constitutes an enjoinder to the
Constitutional Assembly to give due consideration, to inter alia the
fundamental rights contained in Chapter 3 of the Interim Constitution.
It
is our organisation’s submission that at least one other consideration to
which the Constitutional Assembly ought duly to
have applied its mind was the
representations made to it by members of the public and by the relevant
parliamentary subcommittees.
It is further submitted that Principle IX,
the underlying tenet of which is the need for open and accountable
administration at all
levels of government, has been infringed.
The
grounds for objection are as follows:
Our organisation together with
other organisations, made submissions to the Constitutional Assembly in February
1996. Copies of these
will be furnished if necessary. Thereafter, we were
invited to make oral representations to the environmental portfolio committees
of the Senate and the House of Assembly. These were duly made during March
1996. The said committees accepted our proposal and
they were duly forwarded to
the relevant committees. Despite this acceptance, the formulation of the
environmental law right proposed,
section 24, as adopted by the Constitutional
Assembly, did not reflect either the formulation or the substance of our
submissions.
Enquiries were made concerning the reason for this omission
and in response we received a letter from the Chairperson of the Environmental
Portfolio Committee, a copy of which is annexed marked ‘A’. In
essence, it appears that the clause was not considered
because there were issues
perceived to be more important and the Committee ran out of time. Further, some
of the members felt themselves
unable to deal with the issue because they were
not informed about it.
It is our submission that our organisation had, in
terms of section 24 of the Interim Constitution, the right to lawful
administrative
action. This submission is made particularly the Constitutional
Assembly, on many occasions, invited the public to make representations
concerning the Constitution. This invitation was made, inter alia, through
various media, at considerable cost. Our organisation
had a legitimate
expectation that their representations would be properly considered, We
therefore submit that Constitutional Committee
acted in an administratively
unlawful way in that it either failed to apply mind at all or ignored relevant
considerations.
It is recognised that the legislature, in drafting the
Constitution, is engaged in activities which are largely legislative, rather
than administrative. However, it is submitted that to the extent that it
undertook to consider and assimilate these, it was involved
in an administrative
exercise to which the laws of administrative justice apply. In particular,
section 24 of the Interim Constitution
is applicable.
It is acknowledge
that some of the rights contained in chapter two were more politically
contentious than others and therefore required
more debate, the result of
failing to consider some rights because others were regarded as more important
is to create a hierarchy
of rights, something which the Bill of Rights itself
does not do and which is not permissible in terms of any of the Constitutional
Principles.
While we have reservations about the content of clause 24, we
would like to emphasise that the basis of this objection does not go
to the
merits of the clause, but is grounded in procedure. We submit that it can never
be justifiable in an open and democratic
society to promulgate a Constitution
(which will be the cornerstone of our legal system in the post apartheid era)
where invited
representations were not duly considered and where some of the
clauses were not debated at all, simply because time ran out.
We
therefore request that clause 24 of the Constitution be revisited and, if after
due consideration, it is thought appropriate, amended.
ROBYN STEIN
& TERRY WINSTANLEY
Regional co-ordinators of the Northern and KwaZulu
Natal branches of the Environmental Law
Association.
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Parliament of the Republic of South
Africa
Cape Town
28 May 1996
With reference to your fax dated
15 May, 1996, the submission was forwarded to the Constitutional Assembly on 28
March 1996. This
is the day after the last meeting that you had with the
Portfolio Committee on Environmental Affairs and Tourism. I have attached
a
copy of the letter that I received from the chairperson of the Constitutional
Assembly, Mr. Cyril Ramaphosa, after I enquired whether
the submission had
received any attention.
After discussions with the chairperson of the
Constitutional Assembly, it seemed that they did not have enough time to debate
the
issues sufficiently despite the fact that it had reached them timeously.
This was partly due to the fact that there were more contentious
constitutional
issues that they needed to resolve (lock-out, right to life and education
clauses). It was also partly due to opposition
from some members who were not
sufficiently informed about the issue.
I would like to assure you that
while the Portfolio committee on Environmental Affairs and Tourism has not
abandoned the constitutional
route, we have opted for building a strong and
effective department.
PETER MOKABA
Chairperson of the Portfolio
Committee on Environmental Affairs & Tourism
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