Briefing on High Court Application: AFRIFORUM NPC v CHAIRPERSON OF THE JOINT CRC OF PARLIAMENT AND OTHERS Date: 2019.03.01

AFRIFORUM NPC’S REQUEST PART A – URGENT INTERDICT SUSPEND THE DECISION OF THE JOINT CRC TAKEN ON THE 15 NOVEMBER 2018 – CRC sought to adopt the Report of the Joint Constitutional Review Committee on the possible review of section 25 of the Constitution (“The Report”). RESTRAIN THE JOINT CRC FROM SUBMITTING THE REPORT TO THE NA AND THE NCOP – until the proceedings under Part B have been finalised. PART B – DECLARATORY ORDER DECLARING THE REPORT OF THE JOINT CRC AND ITS DECISION TO ADOPT THE REPORT TO BE CONSTITUTIONALLY INVALID – in terms of section 172 (1) (a) of the Constitution DIRECTING THE COURT TO PROVIDE A JUST AND EQUITABLE REMEDY – in terms of section 172 (1) (b), setting the decision and report aside and remitting the report back to the Joint CRC for reconsideration and inclusion of the excluded submissions. CRC had not given effect to CRC acted unlawfully as Public Participation excluded certain duplicate submissions Need further information from the Heads of Argument and Affidavits.

AFRIFORUM BASED ITS ARGUMENT ON THE FOLLOWING: THIRD PARTY SERVICE PROVIDER – report prepared by Service Provider on behalf of CRC; Service Provider had no credentials to do the job; Criticised appointment process NULLIFYING & EXCLUDING CERTAIN SUBMISSIONS – Although 630 609 submissions received, report by Service Provider admits that 176 780 were duplicate and therefore not considered REPORT BY SERVICE PROVIDER IS FLAWED AND THIS FORMS THE BASIS OF THE JOINT CRC REPORT Originally received 630 609 submissions, report only considered 449 522 – therefore a variant of 181 087 and not 176 780 as report suggests. Stats state that 65% of written submission and majority of oral submissions opposed the amendment, yet report suggests public hearings reflected the need for the amendment. CRC REPORT IS IRREGULAR CRC criticised Service Providers report yet adopted stats for their Report Exclusion of submissions is an infringement of the publics constitutional right to public participation.

PARLIAMENTS’ RESPONSE THE RIGHT TO PUBLIC PARTICIPATION HAD BEEN GIVEN EFFECT TO. THE CRC’S REPORT IS NEITHER BINDING NOR DETERMINATIVE - It merely begins the process. NO LEGAL CONSEQUENCES FLOW FROM THE CRC REPORT JUDICIAL INTERVENTION IS PREMATURE- Parliament must be allowed to finalise its process which will lead to further public participation. THE HIGH COURT HAS NO JURISDICTION – Afriforum based its challenge on section 59 of the Constitution that the NA must facilitate public involvement in the legislative process, but only Constitutional Court may decide if Parliament has failed to fulfil a constitutional obligation. SERVICE PROVIDER INVOLVEMENT STEMS FROM ITS APPOINTMENT TO ASSIST PARLIAMENT – its appointment is clothed in legality until the Court rules otherwise.

THE HIGH COURTS DECISION The Court did not grant a written judgment but verbalised its order as follows: Dismissed Part A of Afriforum NPC’s Application – the urgent interdict to prevent the adoption of the CRC Report was dismissed. Directed the Parties to agree to a timetable in order to bring Part B before the Court – programme for further handling of Part B (Review Application)

Common cause-the NA adopted the CRC Report CURRENTLY Parliament has provided Afriforum NPC with the entire record of the CRC Common cause-the NA adopted the CRC Report Parties are in the process of agreeing to a timetable

Way Forward NA resolved resolution to adopt the CRC report and form this committee There is a view that the Afriforum matter is moot, as the challenge has been overtaken by events. Afriforum decision has no bearing/impediment on the work of the committee Midi Television SCA decision on the common law principle of sub-judice

THE END THANK YOU VERY MUCH QUESTIONS