State of the Nation 2024
Type of recommendation
Reforms to the political system
Part 2, Volume 2, Page 44
Category- Legislative Change
- Reforms to the political system
Part 2, Volume 2, Page 44
Creation of a statutory offence for abuse of public power
Category:
- • Legislative Change
- • Reforms to the political system
Description:
It is recommended that the government give consideration to the creation of a statutory offence rendering it a criminal offence for any person vested with public power to abuse that power by intentionally using it otherwise than in good faith for a proper purpose. Such potential violations might range from the case of a president of the Republic who hands a large portion of the national wealth, or access to that wealth, to an unauthorised recipient to a junior official who suspends a colleague out of motives such as envy or revenge.
Responsible to implement:
• Department of Justice and Constitutional Development
Actions on recommendations
The Department of Justice and Constitutional Development will research possible legislative provisions for the creation of a statutory offence for the abuse of public power. This work will be finalised by mid-December 2023.
Progress as at November 2023
This matter is under consideration by the South African Law Reform Commission (SALRC) where research is currently being undertaken, with the report to be finalised by mid-December 2023.
Part 5, Volume 1, Page 183
Category- Legislative Change
- Reforms to the political system
Part 5, Volume 1, Page 183
Amend legislation to allow for formally regulated and open lobbying
Category:
- • Legislative Change
- • Reforms to the political system
Description:
[A witness at the Commission] Mr Mbindwane ... recommends the introduction of formally regulated and open lobbying through legislation, instead of secretive lobbing, which would lead to bribery and tender fraud. To this end, he recommends an appropriate amendment of the Privileges, Immunities, Independence and Protection of Members of Parliament Act of 2004 to provide for, amongst others, the registration of lobbyists, registration of their contracts with the government, declaration of gifts, etc. These recommendations are worthy of consideration.
Responsible to implement:
• Leader of Government Business
Actions on recommendations
The Leader of Government Business will interact with Parliament’s Presiding Officers on the recommendations that relate to the interface between Parliament and the Executive.
Progress as at November 2023
The recommendation is a matter for consideration by Parliament.
Part 5, Volume 2, Page 824
Category- Operational / Regulatory Change
- Reforms to the political system
Part 5, Volume 2, Page 824
Parliament to put in place mechanisms to prevent unlawful use, or abuse, of power by the Executive
Category:
- • Operational / Regulatory Change
- • Reforms to the political system
Description:
It is recommended that Parliament puts in place mechanisms to ensure that such unlawful use, or abuse, of power by the Executive to silence its critics is not allowed to happen again.
Responsible to implement:
• Leader of Government Business
Actions on recommendations
The Leader of Government Business will interact with Parliament’s Presiding Officers on the recommendations that relate to the interface between Parliament and the Executive.
Progress as at November 2023
The recommendation is a matter for consideration by Parliament.
Part 5, Volume 2, Page 847
Category- Legislative Change
- Reforms to the political system
Part 5, Volume 2, Page 847
Sanction for constitutional and political malpractice to be considered
Category:
- • Legislative Change
- • Reforms to the political system
Description:
The term political malpractice has been recently coined. Given the extent to which certain public representatives failed to exercise their power, and the resultant massive losses to the fiscus and the suffering caused to vulnerable members of the public, in respect of PRASA-related matters, and the premium that the Constitution places on accountability, perhaps it is time for South Africa to ensure that its public representatives fulfil their obligations by introducing a form of sanction for what may be termed constitutional and political malpractice.
Responsible to implement:
• Department of Justice and Constitutional Development
Actions on recommendations
The Department of Justice and Constitutional Development has been directed to undertake research on the creation of an offence of political or constitutional malpractice. It will be completed by December 2023.
Progress as at November 2023
The matter is under consideration by the South African Law Reform Commission (SALRC) where research is currently being undertaken, with the report to be finalised by December 2023.
Part 6, Volume 2, Page 658
Category- Constitutional Change
- Reforms to the political system
Part 6, Volume 2, Page 658
Parliament to consider a constituency-based electoral system
Category:
- • Constitutional Change
- • Reforms to the political system
Description:
It is recommended that Parliament should consider whether introducing a constituency-based (but still proportionally representative) electoral system would enhance the capacity of members of Parliament to hold the Executive accountable. If Parliament considers this an advantage, it is recommended that it should consider whether, when weighed against any possible disadvantages, this advantage justifies amending the existing electoral system.
Responsible to implement:
• Department of Home Affairs
Actions on recommendations
Noting that parts of the electoral reforms proposed by the Commission are currently under consideration in Parliament in relation to the Electoral Laws Amendment Bill, and considering that Parliament has a court-prescribed deadline to approve the Bill by 10 December 2022, it will be necessary to await the finalisation of the Bill before determining whether it satisfies the concerns raised by the Commission.
Progress as at November 2023
The Electoral Amendment Act, 2023 recently passed by Parliament makes provision in section 23 for an Electoral Reform Consultation Panel, which the Minister must establish. The functions of the Panel inter alia are to independently investigate, consult on, report on and make recommendations in respect of potential reforms of the electoral system for the election of the National Assembly and Provincial Legislatures.
Part 6, Volume 2, Page 659
Category- Constitutional Change
- Reforms to the political system
Part 6, Volume 2, Page 659
Parliament to consider legislation to protect members of Parliament from losing party membership for exercising oversight duties in good faith
Category:
- • Constitutional Change
- • Reforms to the political system
Description:
It is recommended that Parliament should consider whether it would be desirable to enact legislation that protects members of Parliament from losing their party membership (and therefore their seats in Parliament) merely for exercising their oversight duties reasonably and in good faith. If this is thought to be desirable, consideration would have to be given to whether such protection is feasible for longer than the duration of the Parliament to which a member has been elected.
Responsible to implement:
• Parliament
Actions on recommendations
Parliament is developing its own response to the Commission.
Progress as at November 2023
The constitutional oath of office for all Members of Parliament should serve as a guideline for executing Members’ constitutionally mandated functions. Sections 58 and 71 of the Constitution, 1996 which deal with privilege and which provide that Cabinet members, Deputy Ministers, members of the National Assembly, delegates to the National Council of Provinces and local government representatives participating in the Council, have freedom of speech in the Assembly and the Council and in its committees, subject to its rules and orders and are not liable to civil or criminal proceedings, arrest, imprisonment or damages for anything that they have said in, produced before or submitted to the Assembly, the Council or any of its committees, or anything revealed as a result of anything that they have said in, produced before or submitted to the Assembly, the Council or any of its committees. Section 6 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004 already provides for the protection of members for the exercise of their constitutional responsibilities. The Section provides for the privileges, immunities, independence and protection of members and Parliament.
Part 6, Volume 4, Page 1232
Category- Constitutional Change
- Reforms to the political system
Part 6, Volume 4, Page 1232
Serious consideration to be given to recommendation on electoral reform in the 2003 Van Zyl Slabbert report
Category:
- • Constitutional Change
- • Reforms to the political system
Description:
It is recommended that serious consideration be given to the majority recommendation on electoral reforms as given in the Report of the Electoral Task Team of January 2003. The Task Team included Dr F Van Zyl Slabbert who was the Chairperson.
Responsible to implement:
• Department of Home Affairs
Actions on recommendations
Noting that parts of the electoral reforms proposed by the Commission are currently under consideration in Parliament in relation to the Electoral Laws Amendment Bill, and considering that Parliament has a court-prescribed deadline to approve the Bill by 10 December 2022, it will be necessary to await the finalisation of the Bill before determining whether it satisfies the concerns raised by the Commission.
Progress as at November 2023
The Electoral Amendment Act, 2023 is currently subject to challenges in the Constitutional Court. It will be necessary to await the finalisation of legal processes before determining whether it satisfies the concerns raised by the Commission.
Part 6, Volume 4, Page 1232
Category- Constitutional Change
- Reforms to the political system
Part 6, Volume 4, Page 1232
Direct election of the President
Category:
- • Constitutional Change
- • Reforms to the political system
Description:
The Commission recommends that consideration be given to making necessary constitutional amendments to ensure that the President of the country is elected directly by the people. This would be aimed at ensuring that anyone who becomes President of the country does so on the basis of their own popularity with the people, not on the basis that, if voters vote for a particular party, that party will make him or her President.
Responsible to implement:
• Parliament
Actions on recommendations
Since the recommendation for the direct election of the President would require constitutional amendments, it is a matter that should be considered by the various political parties represented in Parliament and by the Parliament’s Joint Constitutional Review Committee.
Progress as at November 2023
The recommendation is a matter for consideration by Parliament and political parties represented in Parliament.
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