Expropriation Bill: stakeholder inputs, with Deputy Minister

Public Works and Infrastructure

30 January 2018
Chairperson: Mr H Mmemezi (ANC)
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Meeting Summary

This workshop was held to provide further input on the Expropriation Bill [BD4D-2015] that had been referred back to Parliament by the President to enable the Committee to chart a way forward. Input was provided by Parliamentary Legal Office and the Department of Public Works (DPW).

The Chairperson said that land ownership was still a critical and unresolved issue for the country, especially as land was still in the hands of a few privileged people who had acquired it through questionable means. This had to be addressed urgently. The laws that Parliament and this Committee were working on, had to benefit the poor.

The briefing by the Parliamentary Legal Advisor focused on three main issues:

  • Concerns raised by the President that inadequate public involvement on the Bill could render the Bill unconstitutional;
  • The Bill, referred back to Parliament, was now joint business for both the National Assembly (NA) and the National Council of Provinces (NCOP); and
  • Whether people were afforded a meaningful opportunity to influence the Bill.

The President had raised both procedural and substantive issues in referring the Bill back to Parliament. Some of these were concerns with processes and procedures in the NCOP, inadequate public consultation on the Bill and why the Bill had not been referred to the National House of Traditional Leaders for comment.

The briefing by the DPW was similar to the issues raised by the Parliamentary Legal Advisor. Its contention was that the President required Parliament to address four key issues in terms of the referred Bill:

  • whether there was any substance to the concern raised that the negotiating and final mandate procedures in some provincial legislatures were flawed;
  • was there insufficient public consultation in the NCOP prior to the adoption of the Bill;
  • the reasons why the Bill was not referred to the NHTL;
  • the merit of the submissions insofar as they related to the procedural issues outlined above.

To address the concerns raised by the President, the Department made some recommendations to Committee. These included that the Committee acknowledge the similarities between the unreasonable public participation process that had taken place in the NCOP and provincial legislatures in the Lamosa judgment and the Expropriation Bill (B4D-2015); that it  identify and implement all procedural guidelines and yardsticks enunciated in the Lamosa and Doctors for Life cases; and that Parliament had to develop standards for engaging with the public in the public participation process;

The Deputy Minister proposed a process in which the way forward on the Expropriation Bill would be “parked,” and that all concerned should await the broader outcome of a more appropriate strategy on expropriation and land. The ruling party would be convening a workshop in due course to discuss and provide clarity on the way forward. The workshop would include a wide number of stakeholders that would contribute to the outcome and should provide a definitive direction on the way forward on this issue.

The Committee discussion focussed on the lack of public participation on the Bill, and what the Committee could do to address this. There was broad agreement among Members not to rush matters, but to wait until there was more clarity on the way forward. 

Meeting report

The Chairperson said that the government prioritised the well being of people, especially the marginalised poor, and a key deliverable was to eliminate the remnants of apartheid still evident in society. Land ownership was a critical aspect, especially as land was still in the hands of a few privileged people who had acquired it through questionable means. This had to be addressed urgently. The laws that Parliament and this Committee were working on had to benefit the poor. This workshop was a key aspect to enable the latter.

Expropriation Bill: public participation process

Ms Phumelele Ngema, Parliamentary Legal Advisor, briefed the Committee on the public participation process on the Bill.

Her presentation contained three main themes:

  • Concerns raised by the President that inadequate public involvement on the Bill could render it unconstitutional, requiring the Bill to be referred back to Parliament;
  • The Bill, referred back to Parliament, was now joint business for both the National Assembly (NA) and National Council of Provinces (NCOP); and
  • Were people afforded a meaningful opportunity to influence the Bill?

The concerns raised by the President on the Bill related to both procedural and substantive issues. These were contained in two letters dated 20 July 2016 and 14 February 2017. 

The initial 2016 letter requested further information and feedback from Parliament on certain aspects relating to the Bill. Some of the important procedural issues raised were that the NCOP and some provincial legislatures had acted inconsistently in respect of the Constitution when passing the Bill – such as flawed mandates and some comments submitted after due date -- that the NCOP failed to facilitate sufficient public participation on the Bill and lastly, that the Bill had not been referred to the National House of Traditional Leaders (NHTL).

The second letter from the President had referred the Bill back to Parliament. Some of the substantive aspects were that there were reservations on the constitutionality of the Bill. Recent case law – the Lamosa judgments, Matatiele and Doctors for Life – had related to a lack of public involvement in legislative issues. Some of the procedural aspects raised by the President were that there had been no proper consultation between the NCOP and provincial legislatures, and the response from the NCOP to his 2016 letter had not addressed this concern.

Regarding Lamosa, where the it was found that Parliament had failed to have adequate public participation on the Restitution of Land Rights Amendment Bill, the President was concerned that the Expropriation Bill would suffer the same fate, and may not pass constitutional muster. The Matatiele and Doctors for Life case had similar themes - that the country’s democracy was participatory and representative, so parliamentary procedures had to reflect this - hence its reference by the President in his second letter to Parliament.

A key requirement for the legislature at both NA and NCOP level was that it had to ensure that the public was given reasonable opportunities to participate effectively, and this meant public involvement in two aspects:

  • The provision of meaningful opportunities for public participation;
  • Measures to ensure people were able to take advantage of presented opportunities.

The Parliamentary Legal Advisor said that she was concerned about certain sections of the Bill - sections 7, 8, 9 and 25. She did not elaborate on what her concerns were, other than that she wanted to re-look at the clauses and would provide further feedback in due course. Another aspect she raised was that the comments raised by the NHTL in respect of the Bill not only related to the reservations expressed by the President, but opened up the substance of Bill. This meant that a new Bill may be necessary, taking other public comments into account.

Department of Public Works (DPW) briefing

Ms Florence Rabada, Acting Deputy Director General (DDG): DPW, said that the departmental briefing would focus on three main areas. These were deliberations on the facts surrounding the re-submission of the bill, what options would be available to the Committee to address the issues raised by the President, and lastly to provide the Committee with some recommendations going forward.

Mr Joe Lekhala, Acting Chief Director: Property Policy: DPW, presented the departmental briefing to the Committee, indicating that the Department’s views were aligned with the earlier presentation by the Parliamentary Legal Advisor.

He provided some key background aspects relating to the Bill. 

The Bill had been tabled in Parliament in February 2015 and had subsequently been passed into law on 26 May 2016 -- the Expropriation Bill, B4D-2015. It was then transmitted to the President for assent. Due to several written objections, the President had directed a formal enquiry to both the Speaker of the NA and the Chairperson of the NCOP. The NCOP Chairperson had advised the President that it had complied with the Constitution and rules regarding the Bill. On 27 September 2017, the Minister of Public Works had informed the President of the precedent set by the Lamosa case, and the possibility of it impacting on this Bill.

On 17 February 2017, the President had decided to remit the Bill to Parliament. He required Parliament to address four issues:

  • whether there was any substance to the concern raised that the negotiating and final mandate procedures in some provincial legislatures were flawed;
  • whether there was there insufficient public consultation in the NCOP prior to the adoption of the Bill;
  • the reasons why the Bill was not referred to the NHTL; and
  • the merit of the submissions insofar as they related to the procedural issues outlined above.

He then outlined the Department’s understanding of how to deal with a Bill referred back to Parliament by the President in terms of the joint rules of Parliament. Some of the important issues emanating from this were that the issues raised by the President were primarily of a procedural nature. This meant that in addressing the procedural defects in the Bill, it could well open up previously unconsidered substantive issues.

The reason the Bill was not referred to the NHTL had been based on advice from the Chief State Law Advisor, as the provisions in the Bill did not impact on customary law or customary traditional communities.

Mr Lekhala touched on examples of case law -- Lamosa, Matatiele and Doctors for Life -- where the Department had reached a similar conclusion as the State Law Advisor in the previous presentation, that of the lack of adequate and meaningful public consultation in terms of the country’s Constitution and inadequate processes and procedures in dealing with matters in the Bill.

To address the concerns raised, the DPW made the following key recommendations to the Committee:

  • that the Committee acknowledge the similarities between the unreasonable public participation process that had taken place in the NCOP and provincial legislatures in the Lamosa judgment and the Expropriation Bill (B4D-2015);
  • that the Committee identify and implement all procedural guidelines and yardsticks enunciated in the Lamosa and Doctors for Life cases;
  • that Parliament had to develop standards for engaging with the public in the public participation process;
  • that the NCOP and provincial legislatures should share public participation reports; and
  • that the Committee had to reach consensus on the correct joint rules applicable to resolve the concerns on the Bill.

Discussion

The Chairperson said that the workshop was not about finalising issues, but about getting appropriate inputs to enable the Committee to take the Bill forward.

Deputy Minister Jeremy Cronin said he was disappointed that the NCOP Committee had been unable to join the workshop due to a busy schedule. It was important to be mindful of South Africa’s reality - that it was a racialised society with huge inequalities. Government’s constitutional mandate was to drive legislation to redress the imbalances of the past. This Bill was a “framework and guiding law “ on how to expropriate property in the public interest and for public purpose. The process had to meet the test of constitutionality. Although the DPW was the lead government department on expropriation, many ministries and departments were involved. The only reason the DPW was taking the lead was due to old existing laws from before 1994 that had to be changed.

He said that politically, the DPW and Parliament in general had complied very well with the Constitution. However certain shortcomings in the process and procedures at the NCOP level had resulted in problems that had led to a constitutional gap in the proceedings of the Bill. This could only be resolved by Parliament at the NCOP level, where the public participation process had to be done properly.

The ANC had mandated expropriation as a key strategy to redress past imbalances, but the process had to be aligned with the Constitution. There was now a new leadership within the ANC and the direction was that the NCOP process, as envisaged currently in the Bill, could lead to more confusion and problems.

Mr Cronin proposed a process in which the way forward on the Expropriation Bill would be “parked,” and that all concerned should await the broader outcome of a more appropriate strategy on expropriation and land. The ruling party would be convening a workshop in due course to discuss and provide clarity on the way forward. The workshop would include a wide number of stakeholders that would contribute to the outcome and should provide a definitive direction on the way forward on this issue.

Mr D Ryder (DA) referred Members to a recent article in the Business Day on expropriation, and the pitfalls that could await the Committee (and government) if the Bill was rushed through. He said that Parliament had not done its work in progressing the Bill through its various stages, and that it could not afford to be embarrassed yet again when a court found the Bill to be unconstitutional. The Bill had to be “put aside” until other substantive and related issues were dealt with and resolved before the Committee could finalise it.

Mr M Filtane (UDM) wanted to know why the Committee did not go around the country to engage the public on this Bill. The issue was not just an NCOP problem, but also an NA one. He felt strongly that the Committee should still embark on a nationwide campaign to engage and hear the public on this Bill. Traditional leaders had to be consulted, as people in rural areas depended on them for many things such as this. Whether they legally owned the land or not, traditional leaders felt they had a right to the land, and therefore had to be consulted. The Committee had to be aware of and be prepared to deal with the issue of compensation relating to expropriation. He expressed appreciation for the comments made by the Deputy Minister in providing guidance to the Committee, but he felt that the strategy and direction on this issue could be derailed by different factions within the ANC leadership. 

Dr Q Madlopha (ANC) said she agreed with the proposal made by the Deputy Minister that the Committee should wait for further direction before processing this Bill. Once there was clarity on the way forward and a clear framework in place, a joint meeting between NA and NCOP Committees should be convened to ensure a smooth passage for Bill through Parliament.

The Chairperson advised that the NCOP Select Committee had been invited, but due to the busy NCOP schedule it had been impossible for it to attend this workshop. The Select Committee would definitely be engaged in due course to ensure alignment and agreement on the way forward.

Mr F Adams (ANC) proposed that the issue be parked until further guidance from the ruling party. He expected a clear direction in this regard around the end of April 2018. He stressed that the Department had done its work and that the Bill now belonged to the Committee, who would take matters further to ensure the Bill met constitutional standards and alignment with the ruling party mandates. Although the Constitutional Court concerns related to the NCOP, it should not stop the NA from conducting robust and expansive public engagement on the Bill in line with the Constitution, even jointly with the NCOP.

Ms E Masehela (ANC) thanked the presenters and Deputy Minister for the clear advice and explanations to the Committee. She was in broad agreement with previous speakers, but wanted to highlight two issues - that the Committee had to meet with the people, and proper consultation must be done after the Committee received the new guidelines as envisaged in the above discussions. The Committee had to meet with the NCOP to ensure alignment.

The Chairperson said the Committee now had a much better understanding of the key issues and the way forward. The workshop objectives had been met. The ANC was very well versed in public participation and as an organisation had been engaging and consulting with people for a long time. He emphasised that those in power had a duty and obligation to reverse the imbalances of the past, as it was untenable in this day and age that only 10% of the people of the country still held 80% of the land. 

The meeting was adjourned.

 

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