The Committee discussed the negotiating mandates on the Expropriation Bill. Most provinces supported the main principles of the Bill but had submitted comments detailing the results of their public hearings. The Deputy Minister was present and provided clarification on the matters raised:
• Eastern Cape voted in favour of the Bill but expressed concern about the stipulated period of 20 days to respond to notification of municipal property rates and other charges in terms of Section 19 of the Bill. The province viewed these timelines as not being sufficient, noting the operational challenges of municipalities as well as the care with which constitutional compliance on expropriation must be done.
• Free State proposed that there should be an omission of “an expropriating authority” under the definition of “expropriation” to be replaced by “Minister”. This was to ensure that it was only the Minister that was authorised to undertake the expropriation. There was a further proposal to insert a new definition of “valuation” as this would ensure that the valuation of property is not limited to land.
• Gauteng recommended that the definition of “property” should be amended to state in no uncertain terms the categories of property that may be expropriated or protected from non-compensable expropriation.
• Kwazulu-Natal proposed that there should be an insertion of a new paragraph in clause 29(3) and this was to be regarded as conditional support of the Bill.
• Limpopo recommended that traditional leaders should also become part of the decision making process in the expropriation of property and this was especially the case in rural provinces like Limpopo or North West. There was also a proposal to reviewing the Trespassing Act to empower government to implement the Expropriation Act.
• Mpumalanga supported the Bill without any recommendations.
• Northern Cape proposed the need to properly define “property” and the interest rate amount for compensation should be stated in the Bill. Clause 21 should be amended so that both parties are entitled to take the matter to court.
• North West proposed including a provision to address situations where the state is the trustee of the property that is to be expropriated. There was a concern that the Bill was particularly silent on property that had been acquired during the apartheid era.
• Western Cape felt that terms such as “legal disability”, “property”, “valuer” and “expropriation” were ambiguous, which raised interpretation concerns. It said that these should be properly defined in the Bill to avoid ambiguity. It stated that clause 9(2)(a) was in conflict with section 26(3) of the Constitution.
Acting Chairperson’s opening remarks
The Acting Chairperson indicated that the purpose of the meeting was for the Committee to consider the negotiating mandates of all provinces in regard to the Expropriation Bill [B4B-2015]. It must be highlighted that all provinces are in full support of the Bill but they had forwarded recommendations that they thought should be implemented in order to make the Bill constitutionally compliant. Members are expected to discuss the recommendations that had been made by provinces.
Ms M Dikgale (ANC, Limpopo) asked if Members would be allowed to read out all the provincial mandates.
The Acting Chairperson said that this was precisely the intention of the meeting today but that this must be done in brief as the Committee had already received the mandates from all provinces except for Gauteng.
Mr B Nthebe (ANC, North West) commented that there was no need for Members to read out their whole provincial mandate as these had already been discussed in the previous engagement.
The Acting Chairperson maintained that it was a procedural matter for the mandates to be read out.
Ms Vuyokazi Ngcobozi, Parliamentary Legal Adviser, clarified that in terms of the Mandating Procedures of Provinces Act, there is a not any timeframe specified for negotiating mandates.
Ms E van Lingen (DA, Eastern Cape) asked if the Committee had now received the negotiating mandate from Gauteng.
The Acting Chairperson responded that the Committee had only received the negotiating mandate of Gauteng that day, which arrived early this morning.
Ms van Lingen complained that she was not forwarded the Gauteng negotiating mandate. She pointed out that a NCOP Committee had previously faced rejecting the Division of Revenue Amendment Bill precisely because some of the information provided on a provincial mandate was incorrect.
The Acting Chairperson said the Committee would take note of the concern raised by Ms van Lingen. The Committee would go through all the mandates in alphabetic format.
Eastern Cape Province negotiating mandate
Ms Z Ncitha (ANC, Eastern Cape) said that the province was voting in favour of the Bill. However, the province expressed concern about the stipulated period of 20 days to respond to notification of municipal property rates and other charges in Section 19 of the Bill. The province viewed these timelines as insufficient noting the operational challenges of municipalities as well as the care needed for constitutional compliance within which expropriation must be done. The province recommended 30 days instead of 20 days for Section 19(2) and 20 days instead of 10 days for Section 19(3)(b).
Mr Nthebe supported the proposal to increase the period from 20 to 30 days as one needed to take into consideration that all the affected parties should be communicated in advance. The proposal was essentially to accommodate all the administrative processes that needed to be followed in expropriation.
Ms van Lingen supported the proposal for the extension of the period from 20 to 30 days to respond to notification about municipal property rates and other charges in Section 19. The Bill was also correct to accommodate those with registered mail and written notice as there are deep rural areas where post offices had closed down and this was likely to result in delays in the administrative process.
The Acting Chairperson expressed concern that the Post Office might go on a possible labour strike this week and postal services around the world were struggling as more and more people are using modern technology. The Bill should ensure that the expropriating authority was able to issue enough notice to the affected party. The inclusion of “registered mail” in Section 19(3)(a) was likely to be irrelevant in areas where there are no post offices or during a labour strike. The Bill should be drafted in a way that there is a balance between being too specific and not too general. The legal team should provide clarity on the inclusion of “municipal manager” in clause 19(2)(1) as it was unclear how it was possible for the role of expropriating property be accorded to the municipal manager.
Ms van Lingen pointed out that the municipal manager was not involved in the expropriation of property as it clearly states that if land which had been expropriated is subject to the charges contemplated in subsection (1), the municipal manager must, within 20 days of receipt of a copy of the notice of expropriation in terms of section 8(2) (c) (i), inform the expropriating authority in writing of such charges.
Mr S Mthimunye (ANC, Mpumalanga) said that it was not the responsibility of the Committee at this time to focus on the regulations. There was a need to find a balance between not being too specific and not being too general. There are instances where regulations were developed after a particular act had been enacted.
Mr Gideon Hoon, Senior State Law Adviser, responded that Section 25 of the Bill dealt with the extension of the time period and there is a possibility in the Bill for the extension of the time period.
Free State Province negotiating mandate
Mr Ludumo Sishuba, Committee Content Adviser, stated that the province proposed that there should be an omission of “an expropriating authority” under the definition of “expropriation” and replaced by “Minister”. This was to ensure that it was only the Minister that was authorised to undertake expropriation. There was a further proposal to insert a definition for “valuation” as this would ensure that the valuation of property is not limited to land and includes, for instance, market valuation. The province recommended that “must” in clause 3(1)(3), should be replaced by “may”. The substitution was in line with the provision in Section 3, line 47. The province also felt that any punishment to be imposed on an individual found to have committed a breach of this Act, should be prescribed in the Bill.
Ms van Lingen was opposed to the suggestion of prescribing punishment in the Bill as it would be difficult to regulate the punishment. This was especially the case if the payment to the expropriated individual did not take place in time to comply with Section 7(2)(h) i). It would be difficult for the State to determine if the individual who had challenged the expropriation in court was unable to bear the legal costs. It must be highlighted that a legal process is an extensive process and likely to be costly at the same time and therefore the State could not afford to bear the cost of legal fees.
Mr Mthimunye requested that there should be a clear definition of “property” as “property” was not limited to land but also included other belongings.
Mr Nthebe said he had a problem with the proposal by the Free State province to omit “an expropriating authority” under the definition of “expropriation” to be replaced by “Minister”. The definition of “expropriating authority” was consistent with other law requirements in the Bill. The intention of the Bill was for all the other bodies to be engaged in the process of expropriation and this responsibility could not only be thrust upon the Minister. He proposed that the definition of the “expropriating authority” should be retained as currently drafted. There was also no need to have a new definition of “valuation” as the definition of “valuer” was already adequately addressing the concern that had been flagged by the Free State Province. The Committee should just note that the province was in favour of the Bill but reject all the proposals that had been made as they did not “carry any water”.
The Parliamentary Legal Adviser clarified that there would be no specific process under expropriation which would deal with people who challenged the expropriation in a court of law but are unable to bear the legal costs. She pointed out that there are other means put in place such as negotiation and mediation for those individuals who cannot afford legal fees. She maintained that “must” in clause 3(1)(3) should be retained as the Minister needed to be satisfied that a particular property was required for a public purpose. In essence, the Minister would firstly need to “tick all the boxes” before commencing with the process of expropriation and this is not a decision that may be taken arbitrarily.
Ms van Lingen expressed concern about the retention of “must” in clause 3(1)(3) as the Minister could be biased in arriving at a decision that a particular property should be expropriated for a public purpose. The definition of “valuer” should be expanded to include the property that is not necessarily land.
The Acting Chairperson commented that the process of expropriation of property was complicated by the fact that the word “property” was not adequately defined in the Bill.
Mr Welcome Mokoena, Deputy Director, Department of Public Works (DPW) explained that clause 27 already deals with punishment for those in breach of the Act or those who fail to comply with a directive by the expropriating authority in Section 7(2)(h)(i). For those who cannot afford the legal costs, there are other organisations such as Legal Aid and the Legal Resources Centre that are always available to assist people who are indigent.
On the definition of “property”, Mr Jeremy Cronin, Deputy Minister of Public Works, explained that all the Department was trying to do was to define “property” in an open-ended way. The Department had been reluctant to provide a definition of “property” for the reason that the way in which courts, particularly the Constitutional Court, interpret the meaning of property has shifted and this was a complex matter. There was a strong feeling within the Committee that the Department needed to provide a definition of “property” and what had been done was to define it an open-ended way. The definition of “property” does not limit what is to be expropriated. What limits what can be expropriated is what the Constitution says about expropriation.
The Deputy Minister said the Act also made it clear that the Minister of Public Works could not expropriate property that does not fall within his/her mandate, so the limitation to what can be expropriated is contained in a myriad ways and it was unhealthy to limit this to the definition of “property”. In essence, the Department does not have any further input on the definition of “property” as the advice was that the current definition should be retained. It must also be taken into consideration that new forms of property had been coming through and this was therefore making it extremely difficult to provide a coherent and all-embracing definition of property.
Gauteng Province negotiating mandate
The Acting Chairperson stated that the province was in support of the Bill taking into consideration the concerns that had been raised by stakeholders during the committee public hearings. The definition of “property” should be amended to state in no uncertain terms the categories of property that may be expropriated or protected from non-compensable expropriation.
Kwazulu-Natal Province negotiating mandate
Ms van Lingen asked if it was correct to assume that the Kwazulu-Natal province was clear that it would only support the Bill provided that there is an insertion of a new paragraph in clause 29(3).
The Acting Chairperson pointed out that the concern raised by KZN province was already covered in the Bill.
The Parliamentary Legal Adviser responded that the province was issuing a conditional support for the Bill and this was dependent on the Committee taking into consideration the proposed new paragraph in clause 29(3). In essence, the province was in support of the Bill if the concern it raised was already contained and consolidated the Bill.
Mr Nthebe explained that what had been presented by provinces was not the final mandate on the Bill, hence it is called negotiating mandate. In addition, the provincial legislatures had done their part on the Bill’s processing and it was impossible for any province to prescribe what the Committee should include in the Bill. There is an acceptance that not all recommendations forwarded by provinces would be part of the final Bill.
The Acting Chairperson said the only solution to the confusion was for the Committee to tell KZN province that the concern that had been raised in the negotiating mandate was already covered and contained in the Bill. The province was free to consult lawyers to ascertain if the concern was covered in the Bill.
Limpopo Province negotiating mandate
The mandate supported the Bill, but various amendments were proposed.
The Chairperson said that of the ten recommendations, only four needed discussion. These were
6.4 time frames for negotiation and mediation
6.8 traditional authorities should have expropriating powers
6.9 the minister should be able to exclude some property from exp by regulation
6.10 the Trespassing Act should be reviewed to facilitate expropriation.
Mr Mthimunye asked if the timeframe around negotiating and consultation had any relevance to the Bill or the Mandating Procedures of Provinces Act. There is a general concern from most provinces that there was little or no time given for proper consultation with everyone affected by the Bill. In relation to the proposal to also confer traditional leaders with powers to expropriate property, the Committee could not shy away from the reality that there had been conflict in the country around the issue of land allocation and land expropriation and this conflict had been centred around traditional leaders and community themselves and municipalities. The Bill should be able to assist in dealing with this conflict.
Mr Nthebe mentioned that it was important for traditional leaders to also become part of the decision making process in the expropriation of property. This was especially the case in rural provinces like Limpopo or North West. The Committee should indeed look at reviewing the Trespassing Act in order to empower government to implement the Expropriation Act and this once again should not be done in a hostile manner.
Ms Z Ncitha (ANC, Eastern Cape) indicated that the Committee was not ready for the proposal that had been made by the province to confer traditional leaders with powers to expropriate property. It is true that there is still conflict around the allocation and expropriation of land and this was primarily between traditional leaders and the municipalities and this was even delaying the service delivery in some provinces. It was unclear if the call by the province to review the Trespassing Act meant that the expropriating authority would be able expropriate land without following proper procedures.
Ms van Lingen wanted to make it clear that she was totally against the proposal that the President should establish an Expropriation Commission in order to expedite the expropriation of land in South Africa. The Bill was absolutely clear that it was only the Minister that would be allowed to expropriate the land and this power could not be conferred on traditional leaders. There was no need to review the Trespassing Act as any person that would be assigned to conduct an evaluation of the property should have access to do so. The reviewing of the Trespassing Act was likely to open up the door for the pervasive practice of land invasion and other unfair practices that could affect the ownership of property.
Ms Dikgale explained that the main point that was being made was that traditional leaders should also form part of the decision making bodies in the expropriation of property and not necessarily to be involved in the expropriation process.
The Acting Chairperson said the Spatial Planning and Land Use Management Act (SPLUMA) was not working. The traditional leaders have to be involved. There are three spheres of government that are constitutionally recognised in the country. It was imperative to have proper consultation with all the affected parties when it came to the issue of land. The province was not saying that traditional leaders should be provided with exclusive power to conduct expropriation. The Bill was already providing provision for consultation with all three spheres of government including traditional leadership. Chapter 12 of the Constitution already provides for this without it being expressly written into the Bill. Otherwise, one must start with representation for other organizations too.
Deputy Minister Cronin clarified that the Ministry is not giving expropriating authority powers to anyone who does not already have them. There are already 33 pieces of national law with expropriation powers for various ministers in various circumstances. The Ministry is not taking away their powers, but it wants the Bill to guide how they proceed. Whether traditional leaders should have expropriating powers is not to be dealt with in this Bill. That would need to be drafted via COGTA. Traditional leaders do not have such powers now. The Committee should not get into this debate, as it is not a matter for this Bill. Plus, all those affected are already included in the consultations. He said they had met with the traditional leaders on the Bill in a long, all day meeting. They also had Contralesa and others present to them.
The Trespassing Act protects people against temporary and illegal invasions. It could only be the Minister of Justice and Constitutional Development that could amend the Trespassing Act and not the Department of Public Works. He was not unsympathetic to the concerns raised in 6.8 and 6.10, but not for the purposes of what this Bill is trying to achieve. This Bill cannot confer or take away the powers of traditional leaders.
Chapter 1 defines expropriation authorities as organs of state empowered by this Bill or any other legislation to expropriate. If an organ of state is not an expropriating authority, it must go to the Minister and ask him to expropriate for it as in Chapter 2.
Mr Hoon added that the definition of “expropriating authority” was clear that there would be other Acts that would need to be taken into consideration in the process of acquiring property.
Ms van Lingen asked how traditional leaders responded when the Deputy Minister had talked to them. The North West mandate shows that they are not happy with the Bill. Where are the documents that show they were consulted and they are happy?
Mr Nthebe said that this is a misrepresentation of the North West mandate. What they are saying is that they have property which falls outside the usual purview of property.
The Acting Chairperson said that he would check with the Portfolio Committee whether any submissions were made to them by the traditional leaders.
Deputy Minister Cronin said that this is a Section 76 bill. Their responsibility is to bring the Bill before the National Assembly and the NCOP, not to take it to the traditional leaders. They have no objection, but just to cover the issue the Department spent a day with them. Submissions were also obtained from the provincial houses of traditional leaders and from Contralesa. The Department has records of their submissions and the minutes of the discussions. The Department did this as a courtesy, prior to the tabling of the Bill in Parliament.
Mpumalanga Province negotiating mandate
The province supported the Bill without any further recommendations.
Ms van Lingen said that the mandate was dated 28 April. It was beyond the due date.
The Acting Chairperson noted her comment, with which he disagreed.
Northern Cape negotiating mandate
Mr W Faber (DA, Northern Cape) said the Northern Cape proposed the need to properly define “property”. It proposed that the interest rate amount for compensation should be stated in the Bill: “accrual of interest incurred during consultative process and that a dispute may arise in terms of how the accumulated interest will be paid after the agreement to expropriate and the actual time of compensation payment”. Clause 21 should be amended so that both parties are entitled to take the matter to court.
The Acting Chairperson said that most of the inputs raised are already contained in the Bill except that the amount of the interest rate should be specified. The mandate states both parties should be able to approach a court, but this is already included in Clause 21. So there is only one matter, the interest rate
Ms van Lingen expressed concern that the Bill did not make mention of the interest rate amount in the process of expropriation and recommended that had to be considered. She went on to say that if a property transaction fails, it should stop. If the payment is late, that should be the end of it. Otherwise it will drag on forever. One submission also talks of the key need to put the owner in same position as he would have been without expense. It talks about financial help for litigation. An owner can lose a huge amount of money in a legal case, which he cannot afford. They also raise the mortgage issue. A bond will generally be based on the fair value of the property. If a person is threatened with expropriation and is offered too little, the person would stop producing. He would not start ploughing or incurring any other costs. So there would be a loss of income. If payment is late, then the expropriation should lapse.
Mr Nthebe responded that the expropriation of property in itself is a process and part of the determination of the interest is one of the issues to be considered by the valuator. It must be highlighted that the Bill ensured that all proper processes were followed in order for the decision not to be taken arbitrarily. So the matter is not needed.
The Acting Chairperson said that in the original briefing, the Committee was told that there had been consultation with the four major banks on mortgages. They fear that property owners would increase the values of their property once they know that expropriation is imminent and then take out a bond for the higher amount. But if a bank is irresponsible in how it lends money, it must be more careful. So the bond issue is covered. The only question is: If payment is late, what will be the interest rate?
Ms van Lingen said that the meeting he described was hearsay. She complained that there was no representative from the Banking Association of South Africa (BASA) to clarify their viewpoint to the NCOP Committee who must be satisfied in their minds that they are putting forward proper legislation.
Deputy Minister Cronin said that they had sorted out the mortgage bond issue. He noted that clause 13 of the Bill dealt with interest on compensation in the process of expropriation and it is explicitly stated that the determination of the interest to be paid in the process of expropriation would be in accordance with section 80(1)(b) of the Public Finance Management Act (PFMA). That gives guidance as to what interest is appropriate.
The Acting Chairperson asked if the reference to clause 13 answered the concern that had been flagged.
Mr Faber said that he could not assume that. They have not seen the minutes of the discussions with the banks.
Mr Mthimunye suggested that the Committee would need to refer this to the provincial meetings. The provinces must decide in their final mandates.
The Acting Chairperson agreed with the suggestion and then asked Members to proceed to the negotiating mandate of North West.
North West Province negotiating mandate
Mr Nthebe said that the province was in favour of the Bill, taking into account the nine recommendations that had been forwarded to the Committee. The province was particularly concerned that the Bill did not clarify the role of the Valuer-General in a more detailed manner and this should be highlighted in the expropriation process.
The Acting Chairperson responded to recommendations 5 to 9:
5 Expropriation should not leave the owner in a worse position than before. This is dealt with.
6 This has now been covered
7 This issue has been covered
8 More content to the role of the Valuer-General
9 Free legal assistance. This is already adequately covered.
The Acting Chairperson clarified that most of the concerns raised by the province were already covered in the Bill.
Deputy Minister Cronin replied that it was possible for the Minister to expropriate property where the state is the trustee of the property to be expropriated, although this was often undesirable. It must be indicated that the ‘willing buyer willing seller’ is still the best approach to curb the conflict of interest. On the concern about the role of the Valuer-General, there was general consensus that the Valuer-General would be responsible for all evaluation where the state is involved, and this included purchasing, leasing and expropriation of land and this evaluation would be obligatory.
Mr Nthebe responded that he was satisfied with the response provided by the Deputy Minister.
Western Cape Province
The Acting Chairperson stated that there was no delegate from the Western Cape but the province was in support of the Bill with some proposed amendments. He would cover the key points it raised:
1.2 Definition of property is too broad
The Acting Chairperson responded that this was dealt with.
1.3 Definition of valuer does not refer to valuer general.
He responded that this was covered already.
1.4 Definition of expropriation is too vague, should echo Constitution.
He responded that the Committee had said the Constitution is the highest law, so this was covered.
2 The Minister should consider factors other than views of requesting organ of state in deciding whether to expropriate on its behalf. The word ‘must’ should be ‘may’
He responded that this was dealt with.
3 Repairs for damage done during an inspection does not specify standard of repair work to be done. The Acting Chairperson responded that this was a point.
4.1 The 30 days for owner / holder to stipulate amount claimed as compensation is too short.
He responded that this was dealt with.
4.2 Expropriating authority should have to reply in writing to objections raised.
He responded that this was dealt with; the Bill was very clear.
4.3 ‘Reasonable period’ in which expropriating authority must finally decide whether or not to expropriate should be specified.
He responded that this was dealt with; this was covered in the Bill.
5.1 There must be certainty about what portion of land is being expropriated.
He responded that that had been covered.
5.2 There is no time frame for transfer of ownership and possession under a notice of expropriation.
He responded that he knew this was covered in the Bill. They would cover that.
5.3 The portion of land or the position of right being expropriated must be made clear.
He responded that this was dealt with.
6.1 Bill allows expropriating authority to take ownership without paying any compensation at all, puts pressure on owner to accept.
He responded that they would talk to that. He thought it was wrong but they can look at the Bill, however.
6.3 Provisions re transfer of possession conflict with Section 26(3) of the Constitution.
He responded that this was very important for them. They must give certainty that it does not.
6.5 Owner should not be obliged to do more to maintain the property, after ownership has passed but before possession does, than he was doing before.
He responded that that had been covered.
7 Expropriating authority may not be equipped to determine market value.
There was no response on this point.
8 Compensation should be paid before possession passes to help people find suitable alternative accommodation.
He responded that that they would deal with this.
9.1 Compensation paid may not be enough to pay off mortgage bond.
He responded that they spoken to that.
9.2 Obliging expropriated owner with a mortgage to reach an agreement with the bank on apportionment and send this to the expropriating authority is an extra administrative hindrance to the owner.
There was no response on this point.
10 State should provide necessary and reasonable funds for litigation to owner who cannot afford litigation to oppose an expropriation.
He responded that this was dealt with.
11.1 Clause dealing with urgent expropriation must oblige the expropriating authority to state the date on which it will take possession.
He responded that this made no sense to him.
11.2 This clause must also have specific time frame for payment, or owner could be financially prejudiced.
There was no response on this point.
11.3 Degree of repair to property taken on urgent and temporary basis should be outlined.
He responded that this was dealt with.
12 Period for comment on ministerial regulations should be extended from 20 days to 30 days.
There was no response on this point.
He noted that there are no delegates from the Western Cape here to highlight which matters are not important. He asked the legal team to respond to the point about Section 26(3) of the Constitution.
Mr Hoon replied that as for this apparent conflict with Section 26(3), the expropriating authority must take possession on the date stated in the notice of expropriation or the date agreed. If there is an expropriation process, there is a notice of expropriation which will include a date for possession to go to the expropriating authority. Under Section 9(2)(c), if it is not agreed by both parties, it will shift on the date agreed. That meets Section 26(3). In essence, both clause 9(2)(a) and section 26(3) of the Constitution were complementary as they made it clear that the date of expropriation must be agreed upon by both parties.
Ms van Lingen asked if he was saying that Clause 9 is not in conflict with section 26(3), as it states that you cannot be evicted from your home. There are eight million or so black home owners, and they are all at risk. This is a critical matter. You can be kicked out of your house. Do the state law advisers not see that that is unconstitutional? They must put this on the record, they must say whether they think the Bill is constitutional and why.
The Acting Chairperson asked if she had a mandate to speak on behalf of the Western Cape.
Ms van Lingen replied that she had a mandate to raise a matter of constitutionality as a Member of Parliament. Section 72(1)(a) of the Constitution is clear that Members should make proper laws that would be constitutionally compliant.
The Acting Chairperson replied that she assumed that this is what the Western Cape would want to say.
Mr Nthebe said that the Committee has seen that most of the points raised by the province are captured in the Bill. They have extensively dealt with the definition of ‘property’. All the other points we have dealt with. They should not use the courts as a bogeyman to scare the legal advisers from commenting.
Deputy Minister Cronin said that what Ms van Lingen is saying is that it could be useful to give a clear explanation of why Section 25(3) and Section 26(3) of the Bill of Rights are not in conflict when it comes to a person’s home. The Department is not trying to drive this Bill through in a bloody-minded way. They do want to ensure that it is constitutionally compliant. There could be challenges, of course, but they want to be sure. He proposed that there should be a formal opinion on this.
Mr Hoon said that he had addressed Section 25(3), not 26(3), which needs a longer explanation. He said he would put a response in writing, and not deal with it off-hand. It would be useful to provide a written explanation on how clause 9(2)(a) and section 26(3) of the Constitution were in fact not in too much conflict.
The Acting Chairperson said that this would be very helpful to have it in writing. Ms van Lingen felt strongly about this.
Mr Hoon promised to furnish this by the next day.
Ms van Lingen asked if they as a committee would then accept the legal opinion.
The Acting Chairperson said that they would not pre-empt it. Ms van Lingen was raising a strong point about unconstitutionality. This is the only point about unconstitutionality that has been raised. The Committee would not decide now if it is or it is not. The Committee would still negotiate the final mandates of the provinces next week and this is where all the issues raised today would be taken into consideration. There is nothing to prevent any of us from noting the responses on this particular matter. In terms of democratic process, the Committee is allowed to vote on everything. Where there are minority objections, the chairperson must register those. When the Committee reports to the House, it is obliged to register any minority position. The final decision will be made by the delegates of the NCOP.
Ms van Lingen noted that this was adding a new step, if they refer it back to the provincial delegations. She was opposed to this process as Members needed to vote on the decision to be taken going forward.
The Acting Chairperson summed up the decisions taken. On the Eastern Cape, there is nothing that bars them from agreeing. When the delegation presents this to the Eastern Cape legislature, they can work together in addressing these points. So 2.4, the Eastern Cape delegate is happy. For KZN, their point is covered. For Free State, they have dealt with them all and on the interest rate that is covered in the PFMA. On Gauteng there is nothing to raise. Their deliberations were on 29 April, so that is arguably invalid. Limpopo felt strongly that traditional leaders must also have power. North West said that they want traditional leaders to be part of the process. The Department has answered that and it will communicated. The National House and other traditional leaders do not feel they have to be part of the matter.
Ms van Lingen noted that every new bill is supposed to have a socio-economic assessment. This was noted by the Finance Minister in the October 2015 mid-term budget review. She requested a copy of his statement.
The Acting Chairperson asked the committee content adviser and the researcher to look at what was said, and provide the document before the Bill is approved. He asked if there was any matter from the government side that they would want to deal with, based on comments from the provinces.
Deputy Minister Cronin replied that the Department’s view is that it is not giving or taking away any expropriation powers via this Bill. There could be good arguments for giving traditional leaders expropriating powers, but it was not the purpose of this legislation. One would need to have separate legislation to give them this power. The Department is not giving such powers to anyone: just providing a necessary framework for expropriation to those that have such powers. In addition, the traditional leaders were thoroughly consulted. The North West negotiating mandate has been covered adequately. The Royal Bafokeng may need more conversation. They are raising issues already covered in the Bill. The Bakgatla group too. They will work with the Department in giving feedback to these authorities. The Northern Cape had just one matter which has been dealt with. The Western Cape had just one outstanding matter on section 26(3) of the Constitution. He said that the socio-economic report does not relate to this Bill but they would reserve that for the final mandate discussion.
The Acting Chairperson said that the Committee should now elect a permanent Chairperson.
Election of Permanent Chairperson
Due to the non-existence of a permanent Chairperson, the Committee elected a Member to be the Chairperson. Ms Dikgale nominated Mr Nthebe, Ms Ncitha seconded the nomination and Mr Nthebe was duly elected as the Chairperson.
- State Law Advisor legal opinion on Expropriation Bill as provided on 4 May 2016
- Expropriation Bill [B4A-2015]
- Expropriation Bill [B4B-2015]
- Gauteng Negotiating mandates
- KwaZulu Natal Negotiating mandates
- Eastern Cape Negotiating mandates
- Mpumalanga Negotiating mandates
- North West Negotiating mandates
- Northern Cape Negotiating mandates
- Limpopo Negotiating mandates
- Free State Negotiating mandates
- Western Cape Negotiating mandates
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